Written by Graham Perry

Graham Perry M.A. Cantab FCIArb Experienced Arbitration Lawyer | China & Chinese Business Affairs | Public Speaker/Lecturer

26 October 2023




A mediator is not a magician. She/He does not conjure rabbits out of a top hat. And yet a mediator needs to think creatively about finding the breakthrough moment. It happens but you need to be able to look outside the box and see issues that have not occurred to the participants. There is a wonderful line in Harper Lee’s To Kill A Mockingbird. Its common sense is so apparent and yet so often missed by parties locked in confrontation. Atticus Finch says to his daughter “You do not understand a person until you have seen things from their point of view”.

The Mediator has to see things from both points of view – not superficially but deeply; not just for the moment but for the future. In our case the Mediator was alert. She was listening big time. She was reflecting on what the parties did say and – more importantly – what they omitted to say.

Consider the link points in this case; recognising that the Kendalls, quite understandably, were set in their ways. Being in their 80s they wanted things done today in the same way they were done yesterday. Change was never going to come easily to them so don’t try.

The Jacksons were quite different and had more variables in their lives. They were new. They were on the move. They wanted to get on in life and here was the key issue – their children were important to the narrative. The elder son had given them a taste of parental success and they liked it. They basked in his achievements but at the same time his success highlighted the failings of the younger son.

Mrs Jackson (and her son, it emerges, during a casual kitchen conversation) have sympathy for the lad with his speaking difficulties. The link between Mrs Kendall, the football boots and her past teaching career provided the mediator with sufficient detail to work on a key initiative. Mr Jackson was marginalised – the momentum was with Mrs Kendall to achieve with the Jackson’s young son what she had achieved with her own grandson. But it was the boots that opened up the possibility. Why were their grandson’s boots in the aging Kendall’s house – the Mediator thought to herself

In the event Mrs Kendall helped the boy. The boy grew in confidence. Mrs Jackson bonded with Mrs Kendall. Warmth and progress replaced discord and failure and at the right time the mediator was able to address the issues that has first prompted her presence in the lives of the two families – the car parking on the grass; the slamming of car doors and the noisy Jazz FM radio channel.

However, be prepared. Breakthroughs do not always happen and sometimes an agreement is just not meant to occur. Accept it but only after you have been diligent, open-minded, and hard working.

My next Dispute Resolution concerns an arbitrator who, in conversation with 15-20 colleagues at a Training Day, has expressed critical views of Israel’s position re Hamas. Just days later the same arbitrator, by chance, is approached to accept an appointment in a dispute concerning windfarms where one of the parties is of Israel nationality.




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