"Your blog has to have a name!" the marketing people said. Ok, I can live with that, I thought. "Martin's mediation blog" I suggested. Simple and to the point, I thought. But, no. "You have to have a blog name" they said. D'oh! Stupid of me. It seems that all the best blogs are written under a nom de plume, though perhaps nowadays that ought to be nom de clavier d'ordinateur. Or maybe just nom de blog?
Anyway, after conducting exhaustive research on two other blogs,, I suggested "Stupid Bear's mediation blog". The blank faces that greeted the suggestion were not entirely encouraging, I admit. So perhaps I should explain....
I often say in the early stages of a mediation that I'm a stupid bear, and need to have things explained to me. Mostly, the parties and their advisors nod in agreement at what is obviously a self evident proposition, but every now and then someone says "I'm sure you don't mean that". Well, actually, I do. Not literally, of course. For a start, ursus arctos (the common brown bear, though sadly they're not exactly common any more) weighs at least 300kg when fully grown, and whilst I seem to be losing my battle with my waistline, things aren't that bad (yet). And as for my being stupid, well, yes, I do have twenty years' experience as a litigator and over five hundred successful mediations behind me, so hopefully I know enough about the law and about mediation to be able to offer some help to parties trying to find a settlement. But, in terms of what is most truly important in each mediation - the parties' cases and, even more importantly, their hopes, aspirations and needs, - I am, at the start of each mediation, a stupid bear.
I have of course read the papers the parties send me. I know mediators who don't bother, and who just stick some yellow post it notes on the papers at random, so that the parties will think they've read them. Yes, really. Some actually boast about it to other mediators. But I do read every page, and so, yes, I'm broadly familiar with the issues in the dispute. But, inevitably, I still know much less about the dispute at the start of the mediation than the parties, or their advisors, do. And I usually know next to nothing about the parties' aspirations, about their attitude to litigation, about their attitude to risk, or about their hopes for the mediation.
I've learned that the "stupid bear" mindset is a crucial part of being (hopefully) a good mediator; one needs to come into the mediation open and receptive to what the parties say, to every nuance of how they and their advisors put their case, and to what they want. When budding mediators ask me for advice about becoming a mediator, one of the first things I tell them (Right after "You'd earn more as a litigator!") is "It's not about you; it's about the parties. And about their advisors. Not you".
I mediate full time now, but for some years whilst my mediation practice was building up I ran a litigator's case load alongside my mediations, and I would attend mediations with my clients. I learnt a lot from some great mediators. But, good grief, I saw some bad ones too. The truly awful ones almost invariably had a high profile. They were, or considered themselves to be, "stars". Clever bears. Very, very clever bears. And terribly important bears too. And that, I think, was part of the problem.
Probably the worst mediator I ever saw was on the panel of one of the best known and biggest mediation providers in the UK. His profile contained a quote that said something like "You are the best mediator in the world". Or maybe it was "in the universe", I forget. His fee would have gone a fair way to restoring the public finances to health. I travelled to the mediation eagerly looking forward to learning from him.
He called my client "Jane". Her name was Joan. He carried on calling her "Jane", even after she had pointed out that she was called Joan. He called me "Mr Dragon" (for reasons that, to this day, remain obscure to me). No stupid bear, he didn't need us to tell him about our case, because he knew our case better than we did. It bore no relation to the case we thought we had, but that just showed how little we knew. He knew the other side's case better than they did too. The distinction between joint sessions and private sessions was irrelevant, because only one person did any talking. Him. From first to last, it was all about him. Eventually, having said that we would work on as long as it took until the parties accepted the settlement he had decided on, he announced out of the blue that he had been "signalling for hours" that he needed a pizza, and that the mediation was over. Yes, really. And a case that should have settled, that cried out for settlement, didn't settle.
I would say that the "stupid bear" mindset - not approaching the mediation with one's own "clever bear" solution, but being open and receptive to what the parties and their advisors say, and just listening, is crucial for a successful mediation. And I'd like to bring that mindset to this blog. Mediation is becoming an integral part of the dispute resolution process in the UK, and there are no end of issues that need addressing; about where mediation should fit in, about how it should work, and how it should be regulated. The few mediator's blogs that I've seen tend to be written from the perspective that these fortunate individuals (in some cases despite what appears to be an alarming lack of actual mediation experience) have all the answers. Well, I don't have any answers. I'm a stupid bear. But I do have a lot of questions. I realise, of course, that the likelihood is that, like the vast majority of blogs, no one but me and my wife (Hello Karen!) will ever read this. But on the off chance that it does get read, what I'd really like is for it to be a place where those of us who are involved in the mediation process can share our questions, and our own thoughts and even answers, about mediation.
Over to you.
Stupid Bear.
