The Closer: the most important role in mediation

Mediation can be compared with a form of theatre. Participants to a mediation are essentially actors staging a dramatic performance. Each party will have prepared their own negotiation “script” to use throughout the day which supports their overall mediation strategy, usually assigning the role of “hero” to themselves and likely casting their opponent as the “villain”.[1] Legal representatives and their clients should therefore have this in mind when preparing for the mediation and should consider well in advance what role each attendee should play in this so-called “mediation production”. There is, of course, no set structure to a mediation and the nature of any roles will largely depend on the specific facts and context of the dispute between the parties. Most disputes will, however, usually require a “Closer”.

While there is no set format, most mediation “productions” typically begin with a plenary session. Each party (often through their legal representatives) will introduce themselves and begin the mediation by providing their version of events that led to the conflict and articulating their respective positions. The aim of this session is to introduce the “characters” and set the scene for the negotiation. Emotions may run high, particularly if the parties start debating the merits of each side’s case, and the mediator will be carefully monitoring the dialogue during this stage. The parties then retreat to private rooms and the main part of the day is reserved for the negotiation, with the mediator shuttling between rooms and attempting to guide the parties towards a fair outcome that is acceptable to both sides. At this stage, the parties will showcase the main events of the “production” by emphasising key points in their case through the mediator and reconstructing elements of the dispute. Finally, the parties often meet again to seek to resolve the conflict and agree a settlement on mutually acceptable terms.

This is where the benefit of a Closer comes in. Put simply, the Closer’s role is to close the deal. They will seek to convince their opponent that they have the solution to end the stalemate between the parties. The Closer will try to demonstrate that they understand their opponent’s position, that both parties’ interests are ultimately aligned (i.e. that of settling the dispute and avoiding a costly and time-consuming litigation) and will showcase a strong willingness to settle. The Closer will therefore need to be patient, diplomatic and able to push aside any feelings of resentment and anger, instead purely focusing on the practical ways of achieving a favourable settlement.

The Closer will typically present an offer on behalf of their party. They will need to convince their opponent that this is a concession which has been achieved through their own hard-fought negotiation. An effective Closer will also seek to play on their opponent’s resulting sense of relief should a settlement be reached, particularly after a long and adversarial day. For example, the Closer may consider cultivating a sense of urgency in respect of any settlement offer, presenting it as a one-time, last-minute deal and in the interests of both parties to agree in order to avoid unnecessary and costly litigation.

For the Closer to have the most powerful impact, it is generally vital that they only come in at the final settlement stage of the mediation process with “clean hands”. In other words, the Closer needs to be able to come in at the end of the mediation without their opponent having any preconceptions about them, whether positive or negative. In practice, this means that the Closer will have little, if any, interaction with the other side throughout the day in order to maintain neutrality as far as possible until the final stages. The reason for this is that the Closer needs to be seen by their opponent as a potential solution to the dispute, free of any emotional baggage or personality clashes that may have arisen previously between the parties throughout the day.

The findings in the Centre for Effective Dispute Resolution’s (“CEDR”) Tenth Mediation Audit show that reported settlement rates remain high, with a 92% success rate (73% on the day and 20% in the short aftermath). This is an encouraging trend and is a testament to the effectiveness of the mediation process in empowering parties to engage with their opponents in a cost-effective, commercial and collaborative manner, and ultimately close the deal.

Sara Esfandyari, Solicitor at Pinsent Masons LLP

24 April 2023

[1] https://mediate.com/mediation-as-theater-and-negotiation-as-performance-art/