What mediation is not....
I had the privilege of running a mediation theatre for the Student ADR Society at Queen’s University Belfast last night, together with a fellow mediator and friend Austin Kenny. A mediation theatre is a demonstration of how a mediation works, with a set of facts from a typical dispute (this one was a commercial dispute). Students from QUB played the roles of the parties and their representatives and a short snapshot of how each stage of the mediation would operate is demonstrated with one of us acting as mediator and the other commentating and highlighting what the mediator is doing. One of the main purposes is to show that the mediator is not simply a go-between striking a deal, but is actively engaging with the parties to help them find a solution. Whilst the mediator is always neutral, s/he facilitates progress by coaching, challenging, reality testing and encouraging creative thinking to find a way of resolving the dispute.
Running the event reminded me of this blog I had written some time ago after a seminar for my legal colleagues – the points are as relevant as ever, so here it is again.
At a 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 solicitors 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
- 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