Posted: Friday, 4 January 2019 @ 13:43
Setting the record straight on what mediation is and isn’t, how is can be used effectively and some common misconceptions.
As I have developed experience of disputes and trained lawyers in the art of mediation I have come across many lawyers and their clients who have misconceptions about the mediation process.
This post takes a look at those misconceptions and attempts to set the record straight.
Mediation is weak
Whilst the climate is changing as judges seek to encourage mediation, it is still seen by some as a sign of weakness or lack of confidence to propose mediation in employment and commercial disputes. Some even think of the mediation process as the ‘soft option’ not demanding the same planning, professionalism and preparation as say a Court case. Not so. In my experience whilst mediation generally does not have the formality of the Court process, it can often be as intense as a confrontational court case and an effective mediator can, depending on the circumstances, pose direct and extremely probing questions of the parties. At times the parties will also find themselves face to face with each other, which in itself will be a stressful experience. So mediation is no soft option which makes it all the more important to prepare and appoint an experienced mediator to ‘officiate’.
Mediation involves a judgement.
A crucial deficit that I notice when I provide my Making Mediation Work Course is that many lawyers and their clients still prepare for a mediation as though it is a court case and they have to convince a third party. Not so. The mediator’s role is to facilitate a settlement between the parties – a solution which is acceptable to both parties and accordingly the mediator’s role is not to provide a judgement. In effect the view the mediator has of the rights and wrongs of the dispute has no relevance, unlike an Employment Tribunal or Court case involving a Judge. This should lead to a fundamentally different mindset for lawyers and their clients. It means preparing for the mediation meeting differently too. Human Law can advise on this process.
Mediation needs a lawyer present
Sometimes parties feel that they must have a lawyer present to get a settlement at mediation. Not necessarily so. I have been involved in a number of mediations where parties have not had a lawyer present and yes, the parties have been able to settle the case. Nevertheless in my experience a good lawyer will add value to the process by helping with the negotiation process, counselling the client and the mediator and making effective evaluations on behalf of their clients. Each case has to be taken on it’s merits – but if you do choose to involve a lawyer in the mediation process, to advise and support you, be sure that they are fully committed to mediation and understand their role and can advise you on yours. If in any doubt talk to Human Law first.
The mediator needs to be present the whole time.
One of the appealing aspects of the mediation process is the flexibility of the process. As a consequence whilst a mediator will often work through a set format such as holding an opening session with all the parties present and then entering into discussions with the parties separately, there is flexibility in the process. For example in order to help reach a solution, the mediator can ask the parties to talk directly to each other without their lawyers and the mediator present. This does entail risk and should be done carefully but highlights the potential way in which the mediator can get the parties to settle the case. Recently I conducted a mediation where as a last resort to get the parties to settle I got the disputing parties in a face-to-face situation alone. In these circumstances they were able to cut through the rhetoric of the formal process and come to an agreement which satisfied them both. This is a result that could never have been achieved through any other form of dispute resolution.
The mediation is only suitable for family and personnel disputes.
Whilst mediation clearly has a role in divorce, relationship breakdown and employment disputes, it also has a role in complex commercial transactions. Indeed, the advantage of a mediator here is that he or she can identify issues, which may have been locked in different forms of litigation and can then seek to enable the parties to simplify the issues. The advantage of having a third party here is that you have a neutral person who is specifically trained to help find a solution and can retain the confidence of the disputing parties. Ground which can take months to cover between parties can be covered in hours in a well facilitated mediation session