Miles Mediation & Arbitration Services

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August 4, 2017 No Comments

By David C. Nutter

“Why not Mr. Churchill?” An unthinkable question as late as 1935. Winston Churchill was a political pariah scorned by Liberal, Labor, and Conservative alike, the scapegoat of Gallipoli, a warmonger imperialist, out of step with the prevailing pacifist politicians, professoriate, and public. His repeated warnings about the Nazis menace and the threat to England herself were laughed to scorn.

But beginning with a Daily Mail article in May 1936, after German troops occupied the Rhineland, the question began to be asked, “Why not Mr. Churchill?” By the summer of 1939, as Churchill’s warnings came to full flower, the question “Why not Mr. Churchill?” became an avalanche of newspaper pleas, cartoons, and billboards crying out for Winston Churchill. Three hundred seventy-five professors and faculty members of every British university signed a letter calling for Churchill’s return to the government. It was evident that the very existence of England herself was in grave danger. If you watch the movie Dunkirk, you will see that it was only Providence and the pluck of the 700 “Little Ships of Dunkirk” that somehow held back Hitler from destroying the British and French armies. Churchill had been right for a decade. The British politicians and public were not ready to hear it until the threat was all too real and imminent.

There is an unfortunate truth about human nature in this sad saga that explains the two most common complaints heard about unsuccessful mediators. The problem with such mediators, we are told, is that:  (1) they just run numbers back and forth with no evaluative comments or (2) the mediator offended attorney or client or both with their comments. Of course, these criticisms are polar opposites. Somewhere in the middle is the happy medium of the insightful comment well-received.

While no doubt some mediators have a better bedside manner than others, I think the real question is timing. Successful mediators do need to deliver hard truths in a palatable form. But the real question is when. Until the audience is ready to hear the hard truth, however well presented, there is little value in sharing it, and indeed, it is sometimes harmful. If something is said too soon before a threat is seen or a risk is felt, it will have little force or effect. Like Churchill’s warnings in the early 1930’s, they will be ignored or scorned. Only when there is something tangible to be lost, will the message have real meaning. The difference between Churchill and a mediator is that Churchill had 10 years to allow events to catch up with his comments. Most mediators don’t have that much time.

So, all successful mediators do some numbers running. You have to in order to get the parties into a range of perceived risk. Better just to admit it when asked. “Why don’t you tell them about X, Y and Z,” an attorney might ask. “Well, I did say something about X, but why do you want me to say anything about Y and Z while we are 2 million dollars apart? They won’t listen right now and the moment will be lost. Why not move the numbers a bit and wait for a better moment?” This is doubly true in most cases because, unlike WWII, most lawsuits are not really a Manichean battle between light and darkness. There are usually some points on both sides. But when the time is right, and the trial looms, and the stakes are clear, and there is money to be lost, and both sides are feeling some risk, then a friendly but piercing question carries a power far greater than the words themselves.

In 1933, “Why not Mr. Churchill?” would have been a joke. In May 1940 when, as the BBC reported it, “His Majesty the King has sent for Mr. Winston Churchill and asked him to form a government,” it was a cry for a savior from a dying world.

 


Mediator David Nutter

Team Leader David Nutter has successfully mediated and arbitrated over 1,500 cases since joining Miles. His team specializes in complex business disputes, employment, corporate and partnership litigation and dissolutions, and banking and finance. To schedule a mediation or arbitration with Mr. Nutter please call 678-320-9118 or visit his online calendar.