This is where I did my best work in Christmas week – in the twilight zone between the joint session room to the right of the water cooler and the private caucus room off to the left by the green bins.
Corridors can be furtive and risky spaces on mediation days – ‘don’t ask me to cross the centre line, but I’m quite close to it’ kinds of places, ideal for short line ups of lawyers or parties.
My technique has evolved quite differently in each of these three spaces: caucus, joint and corridor– so differently I wish someone would legitimise the humble corridor encounter by giving it a fancy name and teaching a course on it.
My take on corridor encounters is that they are very different in tone and content from joint session or private caucus conversations.
So first to tone;
- Corridor encounters seem to usually involve a variation on the line up of participants and are often with one or other of the attorneys (or both) who typically adopt a different posture with each other out of earshot of clients.
- In my experience it’s most effective for the attorneys NOT to have instructions on any of the matters under discussion in the corridor.
- Corridor encounters often appear to be accidental in the sense they are not usually planned by the participants (although I may contrive them) and, unlike a more formal ‘short line-out’ of attorneys and the mediator, they don’t seem to require consultation with clients.
- They typically occur en route to the loo/kitchen/for a smoke/to make a phone call…they are usually very brief affairs and have a hushed ‘in passing’ tone about them and are often best held towards the end of the mediation process.
- Cut through/bottom line mediation language is expected and such encounters often determine what happens next in the process and, to that extent, have a coaching element to them aimed at choreographing a forthcoming exchange.
For that reason, I find myself volunteering views about the best way forward and in turn am often pressed for the sorts of opinions I would not dream of making on line – in joint or private – as a facilitative mediator.
For content of the humble, yet highly effective, corridor encounter try these:
- ‘My instinct is……that you need to move away from that last issue for now – its taking us backwards, go to X and come back to it’ or ‘……that you need to come off the insult offer range and go to the maybe they’ll buy it numbers, but you know how it goes – expect at least two more dances.
- ‘Yeah, I know – it’s a real pain to have Bob go on like that, but let him get through it- its for him, not you. I’m on to it and will shut it down if it becomes a problem’
- ‘If I ask you this in front of your client/in joint session what’s the answer going to be? …..No, no you need to be braver than that, why not try framing it like this…’
- ‘Don’t be concerned about that aspect – it’s not worrying the other side, despite what you might be hearing. I am addressing it with them in private – concentrate on having your chap get to the third issue on the whiteboard. Try to direct his energies into options around it. You know I’m not saying this in a vacuum, trust me there’s a way through this…’
- ‘Please, please let’s not talk numbers yet – there’s more water to go under the bridge before lunch. And do us all a favour, quit using cut to the chase language – you’re getting a reaction from them in private and its working against you’
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Spot on Geoff. And the examples and language you use are so familiar! My only comment would be that these sorts of exchanges can also be very useful at earlier stages, perhaps especially in that rather “dead” time before the formal start, when everyone is arriving and, for example, lawyers are present but the client has still to arrive and vice versa.
Thanks Geoff, incisive as ever. I agree with John that those phrases are so familiar…
I read with great interest your Blog on Kluwer about the use of the corridor in mediation. It rang big bells with me!
The neutral coffee station can often be used for a “casual” (but sometimes, in reality, engineered) conversation. I even extend this to the toilet (gents only, of course!). Here is a true story:
I was standing at the urinal, as you do occasionally in mediations. Suddenly, next to me appeared the commercial director of a large public company (the defendants in the dispute).
He said: “How do you think it’s going?”
I replied: “Well, I think it could be going a bit better by this stage but I always travel hopefully.”
He responded “Uhm. What do you think of my lawyers?”
I said “I really couldn’t comment on that.”
To my surprise he responded: “I think they are crap. Does that help?”
After a moment, I said “It will help if you go back to your room and remind them that you give instructions and they take instructions: not the other way round.”
He said: “Give me 10 minutes, then come in for chat. We can get this sorted quite quickly.”
Well, he took control from his lawyers and we moved very quickly to a settlement. Had I not had that conversation in the gents, the dispute would probably not have settled because his company’s commercial interests were being dominated by his lawyers views of the legal position, a divergence that I had not picked up in caucus.
So I am a great fan of these private one to one conversations, some engineered and some accidental.
Thanks for writing about it.
Really insightful technic, sir.
This is truly incisive as Bill rightly noted. Perhaps, we have not fully realized the potential of this well-described third mediation space – the corridor or anything that could stand as one – in mediations. I think if it’s well used and managed it can always contribute to a smooth mediation session.