I am indebted to my fellow ASM Plus team member Anthony Wooding as this piece is inspired by a blog that he posted on the website of his law firm, Kerseys, a few years ago. He will shortly be providing us with one of his sequence of up-to-date, highly original articles.
As Anthony has reminded me, a few years ago, a study was made of a group of Israeli criminal Judges. It not only looked at their decision-making processes but also analysed their working day and how they utilised it.
The judges’ working day was essentially divided into morning and afternoon sessions each of which was punctuated by a coffee break. Essentially, the study demonstrated that at the start of the morning and afternoon sessions and immediately after the coffee breaks, the judges were more focused and tended to consider individual cases in more detail. Towards the end of sessions or in the run up to the coffee breaks they tended to flag. At such times decisions appeared to be made more peremptorily with more instances of incarceration.
In highlighting this process, I am very careful to emphasise that this study appears to have been a one off and there is no suggestion on my part that it is representative of worldwide judicial decision-making. However, this Israeli experience is very indicative of what often happens in public and corporate life. One can easily envisage the public official who realises on Friday that he has been taking things a bit too slowly during the week and in order to meet his stipulated target, has to put on a spurt. The pressure on him to get things done increases as the 5:30 PM deadline approaches. Working late on Friday will tell his supervisors that he has been taking it easy and he wants to leave for the weekend with what a “clean slate”. Accordingly, it is distinctly possible that he will make some rushed, ill considered decisions. In some instances he may perhaps spuriously pass a case to another member of staff for comment or unnecessarily ask for some additional evidence.
In the same way, those attending a four hour board or partnership meeting may find that after the first two and a half hours which have been punctuated by long refreshment breaks, no substantive decisions have been made. The shortage of time may concentrate minds and help those in attendance to focus on what really matters but there is also a significant risk that at least some of the participants will simply want to get things over and done with. They may welll be prompted by the “need” to get through the agenda rather than make good decisions.
What about civil mediation you ask? Most mediations will be time limited and those attending might be anxious to avoid further hearing fees or room hire costs. Is there a danger that one or more of the disputing parties will behave in the same way as directors at a board meeting? Will one party be so fed up by 4 PM that he or she will simply “give in”?
By this stage the mediator will already have asked the parties to think about what they see as the obstacles to resolution and what the consequences of non resolution might be. He or she will have one eye on the clock and during the day will have done his/her utmost to ensure that matters do not drag on inconclusively.
A mediator is a facilitator and is not a judge or arbitrator. Wherever possible he/she will prepare in advance and ensure that any relevant papers are read and digested. At the beginning of the day, it will be emphasised that ultimately the parties are in control of the process and that they are ultimately responsible for it. The outline of the process will be explained very carefully and the mediator will ensure the parties understand how mediation works and what may be expected of them. The mediator will also explain that the process is voluntary and that they are free to leave at any point, something that will reassure anyone who has misgivings.
Because she/he is prepared, the mediator will guide parties through the process and encourage them and help them to focus on the relevant issues and move forward rather than just hark back to past events. The issue of time management will be gently but firmly raised at the start of the day and when necessary, reminders can be given. Using his/her skills and experience, the mediator will ensure that a balance is struck between the parties expressing themselves and exploring matters and conducting themselves in a timely manner. He/she will not slavishly insist that the mediation process stops at the appointed hour and will reassure and emphasise that to some extent he/she is prepared to be flexible. It may be that an interim agreement can be reached and that the parties then have the option of reflecting and possibly coming back to mediation at a later date, perhaps for only an hour or two. In some instances an ASM mediator might offer a free 1 hour follow up session.
Ultimately what may or may not go into a mediation agreement is a matter for the parties to decide. Because the mediator will have helped them to concentrate their minds, in practice the process of ultimately drawing up an agreement should be constructive and co-operative. Often, the sheer relief that matters have been resolved in a civilised fashion will spur the parties on to cooperate with each other and try to reach a consensus.
There is no external pressure and prospective mediatees will be relieved to note mediation is very far removed from the poor decision making processes that one often encounters in the public, commercial and indeed private spheres. Certainly, mediation is nothing like the “Israeli Gears” example cited above.
Principal Director of ASM PLUS, civil/commercial, workplace, employment, family and educational mediator and trainer with a judicial/legal background. He has knowledge and expertise in dispute resolution in a wide range of areas and disciplines and mediates online.