What mediation is not....
At our recent seminar for lawyers ('Representing your Client Effectively in Mediation), a discussion arose between the participants on recent mediations they'd been involved in where the mediator had, in effect, simply brokered a deal between counsel for both sides. Accounts were exchanged indicating that this was a common practice and lawyers and clients were left wondering why they incurred the additional costs of a mediator when the likelihood was that the same deal would have been reached in the traditional 'joint consultation' in the Great Hall of the High Court in Belfast.
One of the reasons the lawyers involved had chosen mediation was because of the emphasis it gives to the client and their needs. Mediation is designed to put those needs at the centre, not on the periphery which tends to happen in the 'joint consultation' model. The experience people reported had not done this and, whilst a 'deal' was reached, the client had not had a good experience and had simply ended up paying an additional fee.
The reports of poor experiences were disappointing but gave rise to a productive discussion on what mediation is and is not and some of the points are well worth repeating:
Mediation is NOT:
• Simply an enhanced negotiation
• A more expensive version of a negotiation between lawyers
• A process where a deal is struck & the client simply nods their agreement
Mediation IS:
• A process that can achieve more than the usual binary outcomes
• A process where a mediator earns their fee by helping the parties to find their own solution
• A way to resolve a dispute that puts the client at the centre
If you're interested in our commercial mediation service full details are available at www.thebetterwayto.com