One of the themes I have always liked in David Richbell’s How to Master Commercial Mediation is the idea of the mediator progressing from moulding, through maturing, towards mastering the craft. It is a description that has stayed with me, not least because David was much more to me than the author of an excellent book on mediation. He was my mentor and my guide, and he had a profound influence on the way I came to understand mediation, the way I practise it today and, perhaps most importantly, the way I continue to learn from it.
We would talk often, and when I was still very much a would-be mediator, eager to learn but conscious of just how much there was to learn, I would attend David’s wonderful mediation workshops in Windsor at weekends. I have very fond memories of those weekends. There was something enormously generous about the way David shared his knowledge and experience. It was never simply about learning a process, remembering a sequence of stages or acquiring a collection of clever techniques. He taught you to think about people: what was happening in the room, what was not being said, when to intervene, when to hold back and, above all, how important judgement is to the mediator’s craft.
I learned an enormous amount from David, not just by listening to him but through talking with him, watching him and thinking afterwards about what he had done and why. He shaped much of my early thinking about mediation, and years later I still find myself recalling those conversations when confronted by a difficult moment in a case. I miss him dearly, and perhaps that is one of the reasons I now feel quite strongly about giving aspiring mediators an opportunity to see real mediation in practice.
I now undertake two or more mediations in most months, many of them through RICS Dispute Resolution Service (DRS). However many one does, no two are the same. The disputes differ, the personalities differ, the lawyers and experts differ, and the commercial and emotional pressures on the parties can be entirely different. Quite often, the mediation that actually unfolds bears surprisingly little resemblance to the one I had imagined after reading the papers beforehand.
There is, however, one feature that I try to make a regular part of my mediations: I almost always like to have an assistant with me. That is, of course, entirely subject to the approval of the parties and to the appropriate arrangements regarding confidentiality and conflicts. I would never want an assistant to be present if either party felt uncomfortable about it. Where the parties are happy, though, I think the presence of an aspiring mediator can be immensely worthwhile, both for them and, perhaps less obviously, for me.
Learning by watching
There is only so much mediation that can be learnt from a book or in a classroom. You can teach process, questioning techniques, reframing, confidentiality, risk analysis, reality testing and approaches to impasse, and good role-play exercises are enormously valuable. Eventually, though, an aspiring mediator needs to see what happens when real people, with real businesses, real money, real relationships and real consequences at stake, enter the room.
That is when many of the subtleties of mediation become apparent. The pauses matter, the silences matter, and the apparently casual comment that someone makes can turn out to be hugely significant. A position that appears completely immovable at 11 o’clock in the morning can look very different by late afternoon. A conversation which at the time appeared to be taking everyone nowhere can, several hours later, turn out to have planted the seed that unlocked the dispute. It is difficult to teach those things in the abstract; there is enormous value in simply being there and seeing them happen.
I also think it is important for aspiring mediators to see the reality of being the mediator, rather than a polished version in which the experienced practitioner appears always to know exactly what to do. There are moments, even after many mediations, when I will sit there with my head in my hands wondering what on earth I am going to do next. I do not particularly mind an assistant seeing that. In fact, I think that exposure is part of the value of being there.
Experience does not mean that you always have an instant answer or that there is invariably some brilliant intervention waiting to be deployed. Sometimes the right thing to do is simply to stop and think, go back over what has been said, reconsider what is really preventing movement and perhaps recognise that the idea you were about to try is not nearly as clever as you first thought it was. Experience, I have come to think, is not so much about always knowing what to do next as developing the confidence not to panic when you do not know what to do next.
That is an important lesson for someone starting out. If we present mediation training as though a good mediator simply moves effortlessly from one perfect intervention to another, we give aspiring mediators a rather misleading picture of the craft. Real mediation involves uncertainty, judgement, instinct and patience, and sometimes simply sitting with a problem until you begin to see it differently.
An extra pair of eyes and ears
The benefit is certainly not all one way. A good assistant is genuinely useful to me. A mediation is an intensely absorbing day in which you are trying to listen simultaneously to what is being said and what is not being said. You are thinking about personalities, relationships, body language, commercial pressures, risk, offers, timing and the mood in each room. At almost every stage you are making judgements about whether to push, pause, challenge, reassure, leave something alone or return to it later.
Having another thoughtful pair of eyes and ears can therefore be invaluable. An assistant may notice a detail, an expression or a change of atmosphere that I have missed. They may remember a particular choice of words which becomes significant several hours later. They can also help with the practical mechanics of a long mediation day, allowing me to concentrate as fully as possible on the parties and the process. They are not a second mediator and the responsibility for conducting the mediation remains entirely mine, but I value having them there.
One mediation is useful; up to three is much better
Over the past 12 months, I have had the pleasure of having a number of aspiring mediators sit with me as assistants. Some have joined me for just one mediation, while others have returned for a second and then a third. I limit the opportunity to no more than three mediations for any one assistant, because the purpose is to give them meaningful exposure while also making sure that I can offer the same opportunity to others coming through the RICS course.
I particularly value that continuity because I have noticed that the way someone observes a mediation changes considerably after their first experience. On the first occasion, quite understandably, much of an assistant’s attention is devoted to the mechanics of what is happening: how private sessions work, how information is handled between rooms, how the day is structured, and how the mediator manages the rhythm of what can be a long and demanding process.
By the second and third occasion, their attention tends to move away from what I am doing and towards why I am doing it. They begin to wonder why I have asked a particular question at that particular moment, why I have chosen not to pursue another point, why I have remained in one room longer than expected, or why I have allowed a silence to continue rather than filling it. They also get to see that an approach that worked beautifully in one mediation may be completely inappropriate in the next.
That, I think, is where the learning becomes much richer. Three different mediations can expose an aspiring mediator to three entirely different sets of personalities, pressures and problems. It is enough to begin to see that there is no single formula for mediation, while also ensuring that I can then make room for somebody else to have the same opportunity.
I also enjoy the conversations afterwards. Without ever compromising the confidentiality of the mediation, there is enormous value in discussing why something seemed to work, why another intervention did not, when the mood appeared to change and what else might have been tried. Those conversations are intended to help the assistant, but I frequently find that they cause me to reflect again on my own decisions. Teaching and explaining why you did something has a rather useful habit of forcing you to examine whether you actually had a good reason for doing it.
An important caveat
I should make an important qualification. I do not operate an open-door policy for anyone who would simply like to sit in on one of my mediations. The assistants I take are drawn from the RICS mediation course on which I coach, alongside Peter Vinden, Raj Sohal, Carol Hope, Indrani Govender and others. That is important to me because they have already received a rigorous grounding in the process and understand the professional responsibilities that come with being present at a confidential commercial mediation.
Their presence is always disclosed in advance and, most importantly, it is entirely subject to the agreement of the parties. The parties must be comfortable with the arrangement; if they are not, then there is no assistant. Confidentiality and the integrity of the process will always come first.
Recently, one of the assistants who had spent a day with me said afterwards: “I cannot believe how realistic the RICS course is.” I was genuinely delighted to hear that. A training course can never reproduce every element of an actual commercial mediation because, however good the simulation, the money, businesses, reputations and relationships at stake are not real. But if someone comes through the RICS course, attends a live mediation and is struck by how closely the training reflects the situations and challenges they see in practice, I think that says a great deal about the quality of the training.
As someone who coaches on the course, I found that especially gratifying. There is obviously a difference between practising a difficult conversation in a training room and having one with somebody who has lived with a dispute for several years, but the purpose of good training is to prepare people for precisely those moments. Hearing that comment from someone who had now seen the real thing was therefore particularly pleasing.
Someone once made room for me
There is a more personal reason why all of this matters to me. Someone once made room for me to learn, and David was one of those people. The conversations we had and those weekends in Windsor when I was still trying to find my feet as a mediator mattered enormously. David was prepared to share not merely the things that worked, but how he thought about them and why he made particular choices.
He challenged me, guided me and helped mould the mediator I eventually became. Even now, when I encounter a particularly difficult moment during a mediation, I find myself returning to things he said. Sometimes, when I am sitting with my head in my hands and genuinely wondering where on earth to go next, I still find myself thinking, “What would David have made of this?”
Mediation is a craft. Some of it can undoubtedly be taught, a great deal comes only through experience, and much comes from observing others, talking to them about what they do and then slowly developing an approach that feels authentically your own. That, perhaps, is part of David’s journey from moulding, through maturing, towards mastering.
I am not convinced that any of us ever completely masters mediation. However experienced you become, the next dispute can quite quickly remind you how much there still is to learn, and I suspect that is a healthy thing. What I do believe is that, as we become more experienced, we acquire a responsibility to give others some of the opportunities that were once given to us.
For me, having an assistant alongside me, where the parties are entirely comfortable with it, has therefore become an important part of my mediation practice. I hope that those assistants learn something useful from seeing me at work, including seeing the moments when I am not entirely sure what to do next. I know that I learn from having them there too.
Most of all, I like to think that by making a little room for the mediators coming through behind me, I am carrying forward something that David Richbell gave so generously to me.
Over the past year I have been very fortunate to have Dolly Manwani Nair MRICS MCiarb, Kevin Potts, Edward W Bagnall, Gary Le Feuvre MRICS, MCIArb amongst others assist on my mediations, some on one occasion and others on two or three. I am enormously grateful to each of them, not simply for their help on the day but for the conversations and reflections afterwards, which invariably make me think again about my own practice. Rather than me trying to describe the experience entirely from the mediator’s side, I would be really interested to hear from them directly.
What did you learn from sitting in on a live mediation? What surprised you? Was there anything that felt very different from the training, or, as one assistant memorably told me, surprisingly similar to it? And, perhaps most importantly, has the experience changed the way you think about how you would mediate yourself?