My greatest mediation teacher
Zen holds that everyone we meet is our teacher. I’ve seen that thought attributed to the Buddha, mostly on posters that superimpose the words on a picture of a very old Tibetan person looking wise, though I’ve also read learned articles that say that there’s no evidence that the Buddha actually said it. Whatever. As always in Zen, the point is not whether some guy who may or may not have existed did or didn’t say it two thousand five hundred years ago, but rather whether the remark rings true to you. It’s certainly rung true to me in my career as a mediator and so before we get into Zen and the Art of Mediation, before I even start telling you about the Four Noble Truths which lie at the very heart of Buddhism, I’m going to introduce you to the greatest mediation teacher I ever came across. Step forward and take a bow, Humphrey Forbes-Smythe QC.
That’s not his real name. You probably guessed that, not least from what I said in the Introduction to this book about preserving confidentiality. Plus, if I used his real name, he might bring a libel action against me. And whilst I’m confident that I would fight it off, since what follows is, as I promised, true in its essence, it would be a little sad if a book on mediation was to spawn litigation. So we’ll just call him Humphrey Forbes-Smythe. I haven’t been able to find a mediator named Forbes-Smythe anywhere. So that name should be safe enough. I also tried to find a first name that no mediator anywhere has, but gave up: five minutes on the web was enough for me to conclude that the world is a big place, there’s lots of mediators in it, and no matter what name one thinks of, there’s a mediator, somewhere, who goes by that name. So, let’s just say that if you know a mediator who is actually called Humphrey, or Forbes-Smythe come to that, then it wasn’t them. OK? Anyhow, the mediator we shall call Humphrey Forbes-Smythe QC was my greatest mediation teacher because he was the mediator who couldn’t mediate his way out of a paper bag. And his example will be a source of enlightenment and instruction to us throughout this book.
It must be over fifteen years ago, now, since I met Humphrey. Back then, I’d just qualified as a mediator, but I was still working in my former day job as a litigation lawyer whilst I tried to figure out how to build my practice as a mediator. My client on this occasion was a lady in her mid sixties. We’ll call her Mary. Mary was being sued by a large bank, who were claiming from her the repayment of funds that they had lent to her late husband’s business. He had been in the business of making those very beautiful, very traditional, welted leather shoes that feel really stiff when you first put them on, but which you know must be good for you because they cost four times the price of an ordinary shoe. The bank’s case was simple: we lent money and we’d like it back, please. Before they loaned the money they had taken guarantees from Mary’s (now) late husband, and also from Mary personally. The business had gone under, Mary’s late husband wasn’t going to be paying anything to anyone any more and the only asset around was the (quite substantial) family home that Mary and her husband had shared. The bank wanted it sold, so that the debt, or at least part of it, could be paid. They were polite. They were regretful. They didn’t take any pleasure in the fact that Mary would be out on the street. But, business was business, they had loaned the money, Mary had guaranteed the loan, they were out of pocket, they owed a duty to their shareholders to recover the funds, Mary’s home was the only available asset etc etc.
Mary’s defence was that she may have signed the guarantees, but that she hadn’t understood what she was signing. She had loved and trusted her husband, of course she had, and she’d signed because he told her to sign. She had no idea that she was putting her home on the line. And that’s a defence that would have had prospects of succeeding. But, and it was a big but, she’d had legal advice from a solicitor before signing. The bank had insisted on it. And it’s a lot harder to argue that one didn’t know what one was signing when an independent solicitor has explained it in words of one syllable. There again, there were doubts over how independent the solicitor had been, he’d also acted for Mary’s husband, and for the bank on other matters…..in short, we had an argument, but no more than an argument.
In many ways, it was an ideal case for mediation. There’s no villain here. The bank were out of pocket, and just wanted back some of what they’d loaned. Mary hadn’t run off with the money herself. Her husband hadn’t intended his businesses to go under without repaying. It was all just unfortunate. Moreover, and the bank didn’t know this, Mary had neither the funds nor the will to take the case to trial. Her home, worth over £800,000, was far too big for her. She was willing to see it sold, but wanted to preserve maybe £250,000 to enable her to buy a smaller place more suited to her needs. Anything on top of that, she was willing to see go to the bank. And whilst the bank didn’t know that, we guessed that they weren’t really desperate for the publicity that would come with making a lady in her late sixties homeless. A deal ought to have been within reach. So when the bank issued proceedings, I put in a defence for Mary, so as to preserve her negotiating position, but we also suggested mediation. The bank agreed. They would mediate. But, the mediator had to be from one of the most expensive mediator panels in the country.
The bank’s response didn’t come as a surprise. I’ve noticed that banks and large corporations often feel more comfortable if they are paying top dollar for what is presumably a top quality service. And back then mediation was much less commonplace in this country than it now is, there were probably one or two slightly dubious mediators around, and it was no great surprise that the bank wanted a top man (or woman) at a top price as a way of guaranteeing quality. It may also have been their way of seeing whether we were committed to the mediation process. I don’t know. But anyway, they named three individuals from an expensive panel, and invited us to choose one.
We went along with the suggestion. All three were eye wateringly expensive. But you’ll remember that Mary wasn’t in a position to take this claim to trial. She had to settle. And in the context of the whole claim, a few thousand pounds extra on the mediator’s fee really didn’t matter one way or the other. If paying a bit more for an expensive mediator was the bank’s price for agreeing to mediation, it was a price that Mary was prepared to pay. So she agreed to the bank’s proposal, and asked me to choose one of the three. And I chose Humphrey Forbes-Smythe QC. Yes. He was my choice. It was all my fault. Mea culpa, mea maxima culpa, as Buddhists don’t say.
Humphrey had a glittering CV. He had been educated at a renowned public school, one where the termly fees are about equivalent to the GDP of a small to medium sized developing country, one where wisteria grows on the walls of ancient courtyards. He’d then read Law at a renowned university, one where wisteria grows on the walls of ancient courtyards, and where he’d won the Smoked Mackerel Prize in the Inter-Collegiate Mooting1 competition. From there, he’d progressed to the Middle Temple, one of the Inns of Court in London, where, yes, wisteria grows on the walls of ancient courtyards, and where he’d won the Smoked Haddock Prize in the Mooting competition. After being called to the bar2 he’d joined a prestigious set of barristers’ chambers and built a successful career as a leading advocate. He’d been elevated to the lofty rank of QC about as quickly as it’s possible to achieve such glory. Over and above all that, Humphrey Forbes-Smythe QC was the only one of the three suggested mediators whose CV showed that he had specialised in banking litigation. But what really sold Humphrey to me was a quote on his CV, apparently from a solicitor he’d mediated, which read “I have seen over a thousand mediators, and you are undoubtedly the best mediator in the universe”. That sealed it, I’m afraid. The best mediator in the universe! It was hard to see how anyone else could improve on that. And whilst there was obviously a degree of hyperbole in the statement, this was the assessment of some battle hardened lawyer who had (apparently) seen a thousand mediators perform. And Humphrey was the best of the lot! The best in the universe. Humphrey was the man for us. And I’ll admit, at the back of my mind was the thought that as a fledgling mediator myself, I couldn’t but learn from a mediation with the best mediator in the universe. So, we selected Humphrey Forbes-Smythe QC to be our mediator, and on the day of the mediation I travelled to London with Mary on the early train hoping and expecting that Humphrey would do the job for Mary, and rather looking forward to seeing the great man mediate.
The mediation was at the office of the bank’s solicitors in the City of London. These were the kind of expensive offices that have gold framed paintings of Victorian lawyers on the wall, and where one sinks so far into the deep pile carpet that one nearly gets stuck in it and has to be dug out. The mediation was due to start at 10.00am, but I had made a point of getting there by 9.00am. I wanted Mary to feel unrushed, to have time to relax, and maybe to have a few words with the mediator before the formal start time, just to cover any questions she might have, and to help settle her nerves. The only problem was, the mediator wasn’t there. Not at 9.00am. Not at 9.30am. Not even at 10.00am, when we were due to start. At about quarter past ten, I left our room and went looking for him. It turned out that he’d arrived only a few minutes earlier, and was ensconced with the bank’s lawyers already, which was slightly disconcerting. I knocked on the door to introduce myself. Humphrey Forbes-Smythe QC was tall, thin, and wearing a very prominently pin striped double breasted dark grey suit, the kind that, if the films are to be believed, was de rigueur for gangsters in 1920s Chicago. His hair was parted at the side and rather short, almost aggressively so. He wore round gold rimmed dark glasses. You may recall that a few years ago, when international relations across the world were (briefly) improving, Hollywood ran out of nations to demonise and went through a phase of casting English actors in the role of the master villain in action films. They were always immaculately dressed, they always spoke in the most polished tones, and they were always bent on evil and destruction right up to the last scene when the all-American hero would defeat them with a right hook and a pithy quip. I don’t know if it was the dark glasses, or the combination of those with the dark pin striped suit and the haircut, but something about Humphrey momentarily brought one of those villains to mind, a thought I quickly dismissed.
“Yes, put it over there” Humphrey said, glancing at me briefly before turning back to the bank’s solicitor. As I had nothing to put over there, I was a bit thrown and just stood there for a moment, before introducing myself as the Defendant’s solicitor. “Of course you are!” exclaimed Humphrey, “delighted to meet you”. He seemed to be searching for my name, which he appeared not to have heard. “Delighted to meet you….old chap” he concluded, shaking my hand and beaming at me. “Now, I’ve only just arrived, and I’m just having a little chat with the Claimant, so why don’t you run along back to your room and I’ll come and join you very shortly” he said. I couldn’t quite put my finger on why, but it didn’t feel like the best of starts. His manner was polished and urbane, it’s true, but something about it lacked warmth, and finding him ensconced with the other party before he’d even greeted us was a little disconcerting. And then, being told to “run along” back to my room wasn’t great. But the privacy of each party’s rooms is important in mediation, and it’s not really the done thing to go and just knock into the other party’s room uninvited, so perhaps I shouldn’t have done that. Fair enough, I told myself, and I duly ran along back to our room where I passed on the good news that Humphrey was in the building.
About ten minutes later, nearly at 10.30am he joined us. “So sorry I’m a tad late” he said, in a tone of voice that suggested that he wasn’t. “London traffic!”, he went on, “Gets worse and worse, doesn’t it? And then, finding somewhere to park! Parking spaces these days are so small, don’t you find?” We didn’t find, actually, and as we were from Norfolk we didn’t feel greatly responsible for the London traffic either, but Humphrey seemed to need an apology, so we apologised anyway. He appeared mollified. “Not your fault I’m sure” he said generously, and then introduced himself: “I’m Humphrey”, he said, before adding “Humphrey Forbes-Smythe QC“ just in case we might have muddled him with some other Humphrey who wasn’t in the mediation anyway. “And you must be Molly. Delighted to meet you, old thing”. “Mary”, I corrected, but Humphrey ignored me. “Right, well, we should crack on, don’t you think? Don’t want to be late this evening, do we? Ready for the plenary, Molly?” A plenary session is one that all the parties attend together, usually at the start of the mediation. It’s probably a word that’s more commonly used in the USA; in the UK, we tend to refer just to “joint sessions”. At any rate, Mary hadn’t heard the term. “What’s a plenary?” she asked. “What’s a plenary?” Humphrey repeated, wide eyed, “Dearie me”. He then looked at me and asked with a smile “Has someone not explained the process to their client?” His tone was amiable enough, but nevertheless the kind of tone a nursery school teacher might use when reprimanding a child that’s just returned from the toilet having forgotten to do up their trousers properly. I had of course told Mary that the mediation would probably start with a joint session, I just hadn’t used the word “plenary”. But before I could really follow this train of thought much further, I noticed the papers that Humphrey had brought with him and placed on the table in our room. Before the mediation both sides had, as is usual, sent Humphrey short “Position Papers”, outlining our positions in summary form. These he had in loose leaf form, slightly crumpled, but I guess that showed that he’d read them. But we had also sent a folder containing the paperwork that I and the bank’s solicitor had agreed Humphrey needed to see: the Claim and Defence from the court file, witness statements from Mary and from the relevant bank official, and the loan documents, together with some of the most relevant correspondence between the solicitors. What had caught my eye was that the file containing these papers, which I had prepared, was still sealed in the plastic wrapping in which we had sent it the previous week. Humphrey hadn’t opened it. I probably shouldn’t have stared at it so obviously. At any rate, Humphrey noticed my eyes fixed on it, and appeared to guess my train of thought. “If you’re wondering whether I’ve read the paperwork you so kindly sent, old chap, I don’t need to” he announced proudly, “I can settle this case without all that”. Mary started to cry. Humphrey looked at her kindly. “I know”, he said, “amazing, isn’t it, Molly?” And with that he gathered his papers, read and unread, and led us towards the joint, or plenary, session.
2When barristers qualify they are called to the bar – the rest of us just walk straight up to it and order without waiting to qualify.