As commercial mediation has ‘matured’ it is worth considering again who is, and who should be, at the centre. Is it:
- The Party
- The Lawyer (solicitor, barrister, judge)
- The Mediator
- The providers
- The CMC
It is said that mediation is a party-focused process. It is the party who is at the centre. It is their problem, their solution, their process. This is the opportunity for the party to really have a day in court – a far better day than being in a real court. Here a party can say what they want, with all the feeling and conviction that they have, the only restriction being time (ie no more than twenty minutes) and courtesy (ie non-abusive) – and that it is free of bloodshed.
Unfortunately the theory rarely works in practise. Too often the party is put in the background, sometimes by choice, and others speak (and negotiate) on their behalf. Which is a tragedy, for mediation provides the opportunity for each of the parties to tell their story – their story (not someone else’s version) – to the other side(s) and to then hear the other side(s) version of the same story. Done well it can help parties change position and provide reasons for them to become flexible in their approach to a solution.
So why does it happen so rarely? Firstly, it may be too early in the process. A party is inevitably cautious of the process (it is, after all, usually the first and only time that they experience mediation). They don’t want to say something that will be used against they in the future, or which may upset their lawyer. Too often a party, when invited to speak after their lawyer has made an opening statement, will say “no, my lawyer has said it all”. They haven’t! The lawyer has given the legal argument – there is a much more powerful one to be said by the party – it is their money (payer or receiver), their emotions, their life. Which is why many good Mediators have a fairly lengthy opening session, to give time for a party to settle down, feel confident about the process and then be stirred into speaking.
Similarly, the party should be the one to negotiate the deal. It is their problem, and their solution. Everyone else should be in support but the deal should be theirs. At the very least, the parties should be the ones to seal the deal, to agree the final details and shake hands. They need to own the outcome – that is why mediated deals stick.
Given the above, that mediation is a party-focused process, the lawyer is cast in a supportive role. The theory goes that the lawyer takes more and more of a back seat as the party leads the pathway to solution. For the solicitor, this means preparing the party, encouraging them to take a full part in the process, advising on legal merits, undertaking and reviewing risk analysis and supporting her/his party in their quest for a solution. This may be a challenge for someone who is normally a problem-solver and a fighter for the best deal.
For a Barrister this is even more of a challenge. Instinctively a leader, spokesperson and assumed negotiator, most find it difficult to allow others (preferably the party) to lead and for them to be advisor, supporter and encourager. Indeed, it may be difficult to justify a barrister’s fee in such circumstances! The worst thing that a barrister can do is muffle the party, grandstand the opening session and highjack the deal. Better not to attend at all.
The judge may well be a significant player in a mediation – Instigating the mediation in the first place, threatening sanctions if parties do not mediate or do not mediate in good faith, being the final arbiter if it doesn’t settle. Stories of dead-cert cases that went the wrong way because the judge got out of the right bed the wrong way (or the wrong bed the right way) are always an incentive for even the strongest cases to settle in mediation. Whilst not present, or in the centre, the judge’s shadow is always cast on the mediation proceedings.
The best Mediators are unnoticed most of the time. They are firm but discrete managers of the process whose function is to give the parties the best chance of finding a solution to their dispute. This involves getting parties talking, and the more they talk, the more the Mediator recedes into the background. It involves the strategic use of information (what to give, what to hold, what to reframe) without being overbearing or the central focus. A good Mediator retrains the ego, demonstrates humility and takes no credit for the solution.
There are some big egos in commercial mediation and it must be quite difficult for their owners to avoid the feeling of self-importance, especially when they are constantly in demand and where most of their mediations settle. But even the best Mediators must never forget that mediation in a part-focused process and that the Mediator is just a means to helping that party achieve a solution. One advantage of mediation is that it brings finality, removes risk and lets the parties get on with life the next day. That same next day, the Mediator is history.
Whist Mediator providers may not be at the centre on the day, they have a huge influence on the development of individual Mediators and on the profession as a whole. Collectively (which strangely is not a word normally used in connection with ADR organizations) they are a body which could have a strong voice in the promotion of mediation and in the development of common standards for the accreditation and development of commercial Mediators. To a certain extent this is achieved through the Civil Mediation Council, although that body has other interested parties who have their own voice. It is the providers who have a collective interest in expanding the market, in offering a variety of specialisms and skills and who can bring a commercial as well as professional aspect to mediation. Unfortunately there is no indication (yet) of the many Mediator providers in the UK showing anything other than a precious defence of their own ‘territory’ and they seem a long way from speaking with a united voice. Mediation is the poorer for it.
The Civil Mediation Council (CMC)
The CMC is probably the most representative of all mediation organizations, having many individual as well as company members. The Board has a membership of individual practitioners, providers, trainers, academics and the Ministry of Justice, which gives it some recognition and authority to be at the centre of commercial mediation. Unfortunately its’ history is one of not being sure of its’ purpose in life and it has moved from being an advocate for the increasing use of mediation to having aspirations of being a Mediator member body. One day there will be an Association of Mediator practitioners (hopefully including all strands of mediation beyond commercial) and the CMC will have lost this perceived role. Unquestionably, the CMC provides a valuable bridge between the government and the practitioner and that will become increasingly important as the move towards regulation gains strength. Whether or not it is at the centre of mediation, it will always be a centre of influence.
Of all the influences that prevail on commercial mediation the most important is that it is a party-focused process and all else should be subsidiary. It is their problem and their solution and the Mediator and all the others are there help them get the best deal possible.