A meditation on mediation
When considering one's repertoire as a lawyer, the tags of litigation and arbitration come readily to mind. They now include adjudication. Never wanting to say never, I seized upon the opportunity to add a further '- shun' to my collection and signed up for the mediation course run by the Centre for Dispute Resolution (cedr). The experience was quite memorable, in much the same way as taking the driving test for a second time.
cedr's reputation in the field of alternative dispute resolution is second to none. We were told that 65 per cent of cedr's mediators were lawyers and that this was a figure that it wanted to reduce. As the course progressed, it became clear that cedr would have to do little to achieve this, since many of the lawyers would disqualify themselves.
This was demonstrated admirably by the group of Queen's Bench Masters who were there at the expense of the Lord Chancellor's Department, since mediation will be featuring in the future of High Court actions. Masters are a kind of under-judiciary who dish out brisk justice on pre-trial skirmishes. The day comprised a series of workshops for which the delegates divided the roles of the parties and the mediator. Information about the dispute was supplied for the different roles. From this, the Masters were able quickly to identify the problem, assess the legal merits of the opposing cases and decide on an appropriate solution.
After that the process was interesting but otiose. This is because the functions of a mediator and a lawyer are wildly different. A mediator is a facilitator and encourages the parties towards an agreement. The answer to the parties' differences, however, rests with them: what the mediator believes to be the solution is neither here nor there. The process is not merits-based. Thus a dispute can be resolved irrespective of its rights and wrongs, primarily because the parties will have their own agenda for wanting to settle. The solutions are not limited to the remedies to be obtained in any formal legal process.
The great attraction of mediation is that it concentrates on the future and can present the parties with an opportunity for creating commercial compromises. It has an enviable success rate: nearly all disputes settle during or shortly after a mediation. In order to open the parties' eyes to this potential, the mediator needs to spend time with them exploring matters generally. They are encouraged to get things off their chests.
All of this comes very hard to a lawyer. The habits of nearly two decades are difficult to break. Why debate a cause of action without legal foundation? How do we know what we are arguing about without a list of issues? What is the point in considering a head of claim if there is no evidence to support it? Do we really have to hear the life story?
As the days passed, however, I picked up a few tricks of the trade. I rearranged the furniture to encourage conviviality. I asked wide-open questions - not designed to obtain a particular answer. I sent questions from the parties straight back to them: 'That is a very important point, do you have any ideas how it might be dealt with?' If I obtained a precious offer from one side, I did not report it immediately but casually asked the waiting party if they had any thoughts and learned that they too had revised their position. Finally, after one irate role-player spent 15 minutes expanding on his personal views of his notional opponent, I said, 'Thank you for that.' Good grief, I thought, I have become a mediator. Whether I have or not remains to be seen: the results are expected shortly.