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A sideways look at mediation...

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24/04/2012

L'ESPRIT DE L'ESCALIER

You know how the best lines and the best questions pop into your head after the mediation has finished? This came to mind a week or two back.

I had enjoyed a tremendous debate with David Richbell. He proposed the motion “Non-lawyers make the best mediators”.

Only later did I come across the obituary of a man whose career as a lawyer and a mediator would have made perfect material for my speech resisting the motion.

“X led a charmed life.

After a brilliant career in the Army, marred only by his apparent refusal to attend practical camouflage classes, he headed for the Bar. There his charm and good looks combined with tremendous learning across all fields of law to bring him great success. He was highly sought after for the most complex and high profile cases in all divisions of the High Court and the Appellate Divisions. He was known to complete a complex tax argument in front of the Commissioners, sprint into the High Court to clinch enormous damages for the victims of a fraud before hurtling off to the Bailey to secure acquittal and freedom for one of his less reputable clients.

All of this skill and brilliance he brought to bear in his career as a Mediator. In joint session he was magisterial. In private caucus he would bring cases to settlement by destroying arguments or evidence as if at will. Who could forget the way one piece of litigation was brought to an end by the telling question:

‘Well, Professor, do not tell me you have overlooked the small speck of blue at the bottom right hand corner of slide 36?’

Masterful!

It is fair to say that the closest he ever got to an open question was, memorably,

‘Who is going to be the biggest liar in London when you’re dead, then?’

Active listening was something he demanded of the parties rather than provided. When asked by a solicitor to take a less evaluative approach he replied: "Sir, your clients have paid to see Macbetth. If you had wanted Hamlet you should have gone elsewhere."

He brought, too, his voracious appetite for work. Often mediating several disputes at the same time he famously settled a dispute about the copper trade in Sierra Leone on terms that the Minister for Natural Resources agreed to mend the central heating at 36 Montpelier Avenue, Hammersmith. Meanwhile Mr. Jenkins, the landlord of Number 36, was committed not to supply copper at a price of less than $48 per metric tonne at any point in the next five years. This remarkable result seemed to satisfy all parties, at least at the time.”

Lawyers as Mediators? Who better!