Mediation first impinged on the consciousness of the commercial litigator in England in the early 1990s. Until that time, mediation had mainly been regarded as appropriate for family and marital disputes, disputes between neighbours and the like. However, commercial litigators, handling what they tended to regard as 'real' disputes, not involving messy things like individuals' emotions, tended to regard mediation as the poor man's bromide.

At that time I had been a part of my firm's litigation department for about five years. I was just beginning to feel comfortable in my understanding of the litigation process. I had been asked by my partners to 'transfer' to the litigation department in order to help that department come closer in culture and practice to the commercial department, which dominated the firm. After about five years I was beginning to realise that, in the common law tradition at least, this was an unrealistic aim. As a commercial lawyer, my predominant aim was to find common ground between the parties; some of my most important skills were to identify what the other side wanted, and to give as much of what the other side wanted as I could without compromising my client's interests; and to find and draft combinations of words which provided formulae acceptable to both sides.

I had come to realise that none of these skills was much use in a litigating context. In a 'winner takes all' environment, there is no room for common ground. Every concession has its price. The more unreasonable you are, the more you get. The lawyer's objective is to win; nothing less will do. And, of course, that is what the client wants. Whoever heard of a lawyer who gained a client by telling him in the first meeting that he was likely to lose?

The aspect of the litigation process which came to frustrate me the most was that there never seemed to be a right time to open discussions with the other side. The first hurdle would be the close of pleadings: 'let's wait until we are[Page557:]

sure we understand their case'. Then, it would almost invariably seem wise to wait until the end of the discovery process. The commonly used phrase which I came to dislike more than any other was: 'let's keep our powder dry', meaning that we should not disclose everything to the other side until we were absolutely sure that it was the right thing to do.

I acknowledge that there were usually sound reasons for this reluctance to start the process of trying to do a deal, not least the concern not to give the impression that one lacked total confidence in the strength of one's case. 'Let's keep our powder dry' would often be a tactful way of suggesting that we should not disclose what the client regarded as a killer point until we were absolutely sure that it really was a killer point. Nevertheless, my frustration remains justified. It is not frustration with the lawyers, it is frustration with the process which leads lawyers to behave in this way.

Nevertheless, we should also recognise that the process can, and does, test the lawyer's professionalism and objectivity to the limit. Anyone who has an understanding of the economics of the business of a law firm will know that document management and production can be a major contribution to profitability. In the context of litigation, the AngloAmerican process of discovery in a large commercial case will be a substantial moneyspinner. As will be the rest of the case. There is no income to be derived from a settlement. And while I would be the last person to suggest that any of my colleagues or any of the other lawyers I have dealt with over the years are actually influenced by considerations like this, there are many clients who believe they are and many who will bluntly say so. The fact is that the conflict of interest is there, and there is no point in pretending that it is not.

I think that the part of the process which I came to hate most was the actual opening of the first negotiation about settlement, if and when this eventually took place. Each side would try to pretend that they were only attending the meeting because the other side had asked for it. Both sides would then struggle valiantly to pretend they were negotiating, while doing their utmost to avoid being the first to name a figure. The fact is that the first figure to be mentioned sets the parameters of the negotiation. If the claimant says he will accept x, you know he does not want more. If the defendant says he will pay y, you know he will pay more. Once both sides have named a figure, you can expect a settlement somewhere roughly in the middle between the two figures, though it may take a very long time to get there. The result is that if a figure is first mentioned at all, it will almost certainly be a ludicrous one. I doubt that I have ever engaged in a more boring or more sterile activity than a negotiation of this kind. [Page558:]

I do not have sufficient experience of arbitration to feel able to claim that the same jaundiced view of the process could be justified. Obviously, in cases where discovery is limited or nonexistent, some of the problems indicated above would be avoided. I also suspect that the arbitrator may have more scope for interfering in the dispute resolution process in a constructive way, so as to avoid the worst excesses provoked by the traditional litigation process. Yet I would guess that he would have to be extremely cautious in doing so, since he is still the ultimate arbiter in an adversarial process conducted by highly skilled professionals ready to seize upon any sign of bias or procedural error to justify an appeal or otherwise advance their client's cause. The problem, I guess, is at root the same as it is with litigation, namely that the adversarial process, in which, usually, the ultimate outcome can only be that the winner takes all, inevitably gives rise, and can only give rise, to the kind of behaviour I have described.

The obvious and correct response to all this is that every civil society governed by the rule of law has no alternative but to devise a dispute resolution process whose ultimate outcome has to involve declaring one party right and the other wrong. But is that really so? If you were devising the organisation of a society from scratch, surely one of your basic principles would be to maximise the amount of time your citizens would spend on productive and/or creative activity? In which case, surely, one of your first moves would be to outlaw disputes between citizens altogether? Because, surely, there is nothing less productive, less creative than disputing?

Which brings me to mediation. The reader will not be surprised to learn that when, in the early 1990s, the Centre for Dispute Resolution (CEDR) began to promote vigorously the concept of mediation in all areas of dispute resolution, I was immediately interested. When I undertook CEDR's training course in 1996, I was immediately attracted by the similarities to the training I had much enjoyed, some twentyfive years earlier, in marriage counselling. The emphasis on listening, and on such concepts as empathy and appreciative enquiry, reminded me of how these elementary skills for human relationships had not been any part of my training as a lawyer, and how far they were absent from the armoury of so many lawyers with whom I was familiar.

One aspect of lawyers' behaviour which clients find hard to understand is how lawyers can argue against each other with the utmost vigour, then at the end of the argument walk away together, apparently the best of friends. This is not normal human behaviour. Once again, one can understand that it is dictated by the exigencies of the system and represents one of the better aspects of[Page559:]

professional detachment, nevertheless this needs repeating: it is not normal human behaviour. Nor is it the kind of behaviour which is calculated to persuade the other to accept your argument with pleasure or to adopt your position with enthusiasm.

The mediator, like the litigator, has to gain the client's confidence, without which he can achieve nothing. But, unlike the litigator, he does not have to convince the client that he is on his side, that he is determined to win. The client knows that the mediator is there to help to find a solution to a problem, indeed the mediator will in due course present this to the two sides as a shared problem. The client has to be convinced that the mediator is dedicated to this objective, but he also has to be convinced that the mediator will listen to his side of the case, understand his problem, help him to find a solution that is acceptable to him-in effect, is on his side, just as much on his side as his lawyer. But, to achieve this, the mediator does not have to convince the client that he is dedicated to winning the client's case, by defeating the other party or by ensuring that the other party loses.

This is the fundamental difference between mediation and litigation. In litigation, there has to be a winner and a loser. In mediation, there can be two winners.

Indeed, in many cases, there can be more than two winners. To take the obvious example, in family disputes the third party who also needs to win is the child. Even in commercial litigation, if there are only two parties affected by the dispute, the mediator will look at the wider picture: the cost (only the lawyers will profit from a trial), the waste of executive time and resources, the risk to reputation. Of course, the litigator can and will take these other factors into account, but how easy is it to persuade one's client to do so as long as his heart and mind is set on winning?

Therein lies the fundamental flaw in a system of dispute resolution which ultimately requires there to be a winner and a loser. Litigation leads to win/ lose, mediation to win/win. Once you add to your adversarial system of dispute resolution huge sums of money at stake, highly intelligent people capable of analysing every issue down to the finest detail, the rules of pleading and discovery, the resulting mountains of documents (exacerbated by the existence of emails)-all, I acknowledge, designed to ensure the quality of the ultimate result-you have a behemoth which cries out for abolition. I am not so naïve as to believe that abolition, or even radical reform, is a realistic possibility. It is precisely for that reason that I believe that mediation is the way forward. [Page560:]

I have attended mediations on both sides of the Atlantic and, so far, in only one case has it failed to achieve a solution. It would be fair to say that in every case considerable progress had been made towards trial and, therefore, towards refining the issues between the parties. In all the US cases, the mediator was a retired judge. In the US cases, also, the mediator appeared, at least to me, to take a much more 'directive' approach than did the English mediators. Consequently, I have wondered whether there is a connection: for example, that a judge who has spent his career judging finds it difficult to stop doing so. On the other hand, in one of the English cases one of the mediators was also a retired judge and he adopted a notably 'nondirective' approach, an approach which was certainly more in line with the approach recommended by CEDR and taught in its training course. Yet this was the case in which a settlement could not (as yet) be achieved.

I do not know whether US mediator training differs from the English. Indeed, I do not know whether the US mediators I have encountered (all retired judges, as I have mentioned) had any specific mediation training at all. They all struck me as sensible, businesslike people, with an almost tangible air of authority, who were prepared to push hard for a deal which reflected the realities of the case. Of course, what that means is simply that they succeeded in achieving a settlement which I regarded as satisfactory, and I do not know what they said to the other side which helped to achieve that. However, the overall impression I am left with, from my own very limited experience, is that there may not be the same willingness in England to put pressure on the parties. This would certainly be the likely outcome of the CEDR training course which I attended, and I have to say that I am not myself convinced that the emphasis on a 'nondirective' approach on the part of the mediator is necessarily always right. The mediator's job is, after all, to achieve a settlement, no more and no less. It matters not whether the settlement is fair or unfair, or even whether the parties are happy with it, so long as they can agree it.

Whatever the merits of one style of mediation or another, the main conclusion I draw from my-admittedly limited-experience is that mediation is an excellent way of settling disputes and that far greater scope should be given to it than is at present in the English system of dispute resolution. To what extent that conclusion is equally relevant to other systems, I cannot judge. However, it is relevant to return to my example of the perfect society. If you were to devise a set of rules for the perfect society, one of your principal aims would be to enable all its members to spend maximum time in constructive or creative[Page561:]

pursuits. In which case, one of your first steps would be to outlaw litigation as a method of dispute resolution. Indeed, one is compelled to the view that you would very quickly settle on a system of mediation as your preferred method.

Of course, I am aware that this is hardly a realistic proposal. Indeed, I suspect that a society in which litigation to enforce civil rights and obligations was forbidden would come close to resembling Soviet Russia. I find it difficult to imagine a society in which some form of ultimate decision by a judge in the event of the parties being unable to agree among themselves, would not be necessary. What I do believe, however, is that our present system of dispute resolution needs a far more radical overhaul than even the recent Woolf reforms in the United Kingdom have achieved. A far greater emphasis on mediation, at a far earlier stage of the litigation process and continuing throughout, should be the first step.

When I think of the high quality of the judges and barristers I have known in the course of my career, the rigour and professionalism with which the leading solicitors prepare the big commercial disputes for trial, and the mountainous fees they all earn, I am appalled to think of the quantity and quality of talent which is wasted on such a tortuous and essentially sterile process.

A comparable situation exists in the USA in the case of class actions. The class action specialists make huge incomes at the expense of Corporate America. Although Corporate America and the insurance industry complain, nothing is done about it. What is not so often mentioned is the vast incomes derived by the defence lawyers from defending such suits, at no risk to themselves. Thus, those who know best how to improve the system-the practitioners-have no incentive to do so. This is but an incidental example of the far broader problem which I have been complaining about. It is the legal profession which understands the dispute resolution system well enough to devise constructive alternatives, yet which does so well out of it that it has no interest in proposing change. So it will inevitably happen, just as it has already with proposals to open negotiations for a settlement, that there will always be a reason for postponing any attempt at mediation: 'let's wait till we know their case', 'let's wait till they know our case', 'let's wait until after discovery'. And the best lawyers will continue to flock towards the honeypot of commercial litigation, as they always have done and always will. [Page562:]

Postscript

What I have written above may be a bit of an old codger's rant, occasionally over the top perhaps and maybe unlawyerly, yet buried in it is an element of truth which should not be ignored. I have written it in honour of my great friend, Robert Briner, an even older codger than I, but one who has never lost his sense of balance (either in the physical or in the metaphorical sense), a most distinguished lawyer whom I not only like, but also respect, enormously. I expect my more extreme statements above will provoke in him a gentle smile, and readers should refer to him in order to find out how carefully they should pay attention to them. [Page563:]