June 2019


Slow down to get there faster

by Hayden Wilson*

The right solution, at the wrong time, is still the wrong solution.

“Why don't we just cut to the chase?” is a phrase heard often in mediations.

The parties have gathered, they’re prepared and are ready for a mediator to lead them to the promised land, ie settlement, quickly.

One mediation started much like any other – two parties, both well represented and carefully advised. Opening statements, by lawyers, disclosed agreement on all the key facts but starkly different views on the law and what it meant for their legal positions. “We assess our case at 80%, if we're being generous to them” – anyone heard that before?

To make matters more difficult, it was a purely transactional environment with no realistic prospect for trading on the benefits of a future relationship; opportunities to “expand the pie” were a faint hope.

Nevertheless, there was hope. Both sides candidly announced in open session they were there to do a deal, if only that deal reflected their view of the legal merits.

After a productive, if occasionally slightly fractious, joint session the parties repaired to their separate rooms. Meeting with both, the principals spoke substantively for the first time.

Each said the same thing. “Look, I think this needs me and X to just get in a room and have it out. If there's a deal to be done we will find it.” Not an uncommon refrain, but interesting to hear the same thing, from both rooms, at almost the same time.

Usually a big part of the mediator’s art is timing and sequencing, cajoling and nudging both parties to the same place, at the same time. Here it was, out on the table, early in the day. Time to get them together and get a deal done?

The point was, both were absolutely right. On the basis of the material exchanged and the to and fro of the joint session, the parties were never going to agree on the merits, but knew a commercial solution made sense.

Getting the decision-makers together was a no-brainer. But now didn't seem the time. In one room, there was a group of smart people, each of whom had a slightly different view on what was an acceptable outcome (and whose stake in the decision wasn't entirely clear). In the other was a smart commercial operator, carefully advised, with a view of his legal risk that differed markedly from what I was hearing across the hall.

Getting the decision-makers together now felt like jumping to overtime, before the first half had even finished. I was worried their respective ideas of where the zone of possible agreement was were still too far apart. Ringing in my ears was a phrase I had heard before – the right solution, at the wrong time, is still the wrong solution. And it felt like the wrong time.

So how to slow the train?

The benefit of having good lawyers advising sophisticated parties meant frank transparency was a legitimate option. In each room I agreed that was where the end game probably lay, but it was premature as I didn't think they yet knew enough about what the best number in the other room might be.

I asked each to humour me for a while so we could let the process play out further. They agreed and, over the following hours, offers and counter-offers were exchanged, sometimes face to face and sometimes with me carrying the water between the rooms.

The benefit of transparency meant while the rooms’ temperatures increased during the haggling, it wasn't accompanied by growing frustration at the process. The parties knew the stage they were at and understood the time it was taking.

It also meant, when the crunch time came, I could say to each of them, “do you think the time for you and X to get into a room together has come?”

By then, each knew there was little room for movement in the other room; they had tested the strength of the deal they would have to justify to their respective stakeholders (and they were probably a little bored of the sight of me).

Consequently the final gap was quickly bridged and the lawyers could get on to writing up the deal.

Would the same deal have happened several hours earlier if I'd just got out of the way? Maybe, but I don't think so. And if the parties had tried the circuit breaker approach earlier and it hadn't worked, it might have been significantly less useful later on.

Sometimes, you just need to slow down to get where you are going faster.

*Hayden Wilson is a mediator and partner in Kensington Swan’s Wellington, New Zealand, office. A version of this article original appeared in LawTalk in 2016.

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