How to give help, not advice
Good lawyers make bad mediators.
Well, that's my excuse and I'm sticking to it. The five-day cedr mediation course was a revelation, not least because it required one to abandon the disciplines of a professional lifetime - identifying the crux of a dispute and weighing the evidence supporting the cause of action, causation and damage alleged - and replace them with very different skills, of negotiation and problem solving. Perhaps the most striking contrast between what is required of a barrister and a mediator, is the handing over to the parties of responsibility for resolving their dispute. Barristers are asked for their advice: mediators are asked for their help. The course was very challenging (and expensive), the approach very new, the objectives very different - but I did not expect to fail. Lest I be accused of sour grapes, I shall happily describe some of the features of mediation which contribute to its undoubted success.
Mediation is a voluntary, non-binding, private dispute-resolution process in which a neutral person helps the parties to try to reach a negotiated settlement. It will work if both parties want to resolve their dispute and is a useful adjunct to existing formal dispute procedures. Once the parties have looked into the abyss of litigation they become reconciled to compromise. The watna (worst alternative to a negotiated agreement) has real significance if the alternative is a costly and time-consuming trial.
The mediator is facilitative not evaluative. By shuttling between confidential meetings with the parties, the mediator manages the process, facilitates communication and explores options for settlement, without judging. As an independent neutral the mediator can separate the personalities from their problem, rekindle flagging negotiations, lead the parties to reassess their respective positions and focus on the future.
Throughout the process, however, the parties retain control. They play an active role in the negotiations, rather than watching their courtroom drama unfold. They can leave at any time, unlike with litigation, which has been likened to being locked in a taxi, bound for an unknown destination with the meter running and no means of communicating 'Stop!' to the driver. They can decide upon their own solution, which may bear no resemblance to their rights or the remedies they might obtain in court or, for that matter, what the mediator believes to be appropriate.
The mediator demonstrates skill and confidence, creates an environment conducive to discussion, reads body language, probes with open questions, listens well, challenges assumptions, reality-tests, summarises accurately, checks confidentiality and maintains the momentum. Whereas the parties are often left to their own devices between caucuses, the mediator is constantly on the go. Experienced mediators find the job exhausting. Those participating find the qualities of the mediator central to the success or otherwise of the process.
Mediation is quasi-formal and apparently works a treat for those who are holding out for their day in court or for the principle of the matter. Simply having the opportunity to vent their emotions upon an independent third party and feel that they have been listened to can remove an important obstacle to settlement.
Although I would have appreciated a health warning from cedr that as a lawyer experienced in contentious litigation I might find the role of mediator too challenging, I would have undoubtedly embarked upon the course full of optimism, if only because in order to be accredited as a cedr adjudicator you have to have passed the mediation course. Which leaves me wondering - what has mediation got to do with adjudication?