Charon QC is a fictional silk with a fondness for grape based beverages. His recent podcast features Los Angeles mediator Victoria Pynchon of IP ADR. In an interesting discussion Victoria describes elements of her commercial mediator role as:-
- helping lawyers negotiate settlement of litigation;
- helping lawyers save face with their clients;
- re-translating the legal story back to the actual factual conflict
- getting clients and lawyers back onto the same page – the lawyer typically being focused on the legal cause of action, something the client may not actually understand.
- getting business solutions. Lawyers are often focused on a single remedy (say compensation) when in fact there are many items of differing value which the parties can exchange in settlement.
She describes generating commercial solutions as one of her prime roles in mediation. It often strikes me in a mediation how “the law” frequently makes way for commercial deals. Parties usually want to get on with whatever it is they do, the dispute resolved and out of the way. To do that they are prepared to substitute a commercial approach in place of achieving a strict “legal” resolution of the conflict.
Victoria introduces me to an idea I hadn’t heard of which social psychologists call “autistic hostility“. The idea is that parties to the dispute have feelings towards their opponent that range from “peeved” to “enraged” and as a result they cut off communications. The first thing the lawyer says is don’t talk to the other side (guilty as charged!) which re-enforces the barrier. Any information received from the opponent is then filtered through this state of outrage at the opponent. So the mediator has to recognise this and re-open the communication, a pre-requisite for negotiation.
