CLA News / “When is Mediation Not Mediation?” by CLA Past President, Brian Speers
Mediation for legal disputes has evolved over several decades. The process of mediation has been well established and the principles of mediation have been endorsed by many training providers and academics. Analysis suggests that mediation, when conducted according to the established model, produces successful outcomes for parties with disputes.
The “traditional” model of mediation envisages a voluntary process which, while flexible, makes the parties feel involved in, and part of, the process. The involvement of the parties directly in discussions is a critical distinguishing factor from litigation. In litigation the parties can often feel spectators to the litigation process conducted on their behalf by their legal representative and adhering to procedural rules set out in detail in Rules of the Supreme Court. These rules are understandably formal to provide an agreed process for ensuring that evidence is available to a Court fairly and in accordance with established rules. These Rules refer to the obligation of parties to come to Court only when other resolutions have been tried but have not succeeded.
The legal system in most Commonwealth countries remains an adversarial system with a party alleging a grievance being required to prove their case and to adhere to the strict procedural rules and rules of evidence.
Settlements where achieved involve joint consultations or legal representatives meeting and tentatively edging towards a resolution.
In my jurisdiction, Northern Ireland, from the mid-1990s, and continuing to the present day, there has grown an expectation that parties will have engaged in some form of dispute resolution. This has been encouraged in various Civil Justice Reviews (the Campbell Review of 2000 and the Gillen Review of 2017). Practice Directions have been updated and changed and contain language indicating that the Court expects parties to have made every attempt to have resolved their dispute including using mediation. Mediation training has been provided and many colleagues have experienced that training and have used it to develop their interest in being mediators or in improving their ability to advise clients involved in mediation.
The mediation model which I refer to as “traditional” or “classic” mediation (it is in fact just mediation) involves broadly a facilitative approach whereby the neutral mediator, without any conflicts of interest, listens to the parties, understands their issues and helps to identify solutions that might be acceptable. If such solutions are found, then they are written up in a Settlement Agreement which can be made a rule of Court if required or appropriate.
The “classic” mediation model envisages the parties meeting together in one room for an opening meeting. At that meeting the mediator explains the objectives of the day, clarifies their neutrality and experience, and encourages all present to be willing to explore options for resolution.
The opening meeting in a “classic” mediation involves an invitation to each party to speak, maybe expressing, in their own words, how the dispute arose and how what has occurred has affected them. It gives each party an opportunity to speak directly to the opponent. This can often be the moment where a party feels they have “had their day” and is a hugely useful part of the process enabling progress to be made later when the mediator meets privately with the parties. Of course, there will be a few disputes where the parties meeting face to face is not helpful, and this concern can be identified in the preparation a mediator undertakes before the mediation day. Mediation can flexibly accommodate individual arrangements for specific disputes.
After an opening meeting the mediator in “classic” mediation meets privately with each party and their advisors. The mediator engages with the party directly – it is after all their dispute. The mediator will try and get to know the party and if applicable their business or relationship with the other party. The mediator will be using the initial private meeting to build trust, to show understanding and to gain information that might be relevant to a proposed solution.
Certainly, the early exploratory meetings can yield much information of value to the resolution.
Later individual meetings allow the mediator to stress test or “reality test” positions being maintained by the parties. The mediator can play “devil’s advocate”. Those exchanges can be, and often are, robust. The mediator must be cautious to ensure that they stay on the right side of neutrality while exploring with each party alternative viewpoints to learn the party’s response and reaction.
It is prudent for a mediator to engage with the legal representatives to understand from them, in the “Without Prejudice” setting that is mediation, what difficulties they have and where they would see an opportunity for resolution. Sometimes mediators will meet with the legal representatives on their own, but it should always be remembered that it is the party who is the focus of a mediation. There are disputes in the writer’s experience when a party has said they wish to settle but their lawyer will not allow them!
If enough common ground is achieved, then the mediator can convene a meeting again to review what progress had been made and to summarise what seem to be the terms of a possible Agreement. If a possible Agreement is confirmed, then the legal representatives can draft that Agreement with the mediator in attendance to clarify and assist in the accuracy of the terms being recorded.
Such a description of a mediation will, I suggest, find widespread acknowledgement from all mediators, mediator trainers and mediation providers. What has been described is what mediation is: a facilitated series of meetings where the mediator interfaces with parties and their legal representatives to identify where agreement is possible that most meets the needs and interests of the parties.
However, what is emerging in Northern Ireland, and I suspect elsewhere in the UK, is a very significant variation from “classic” mediation as described above. What is experienced in some mediations, is a process where the focus is more on engagement with the legal professionals than the parties. In these disputes the “mediator” is, in effect, chairing talks between the legal representatives for the parties. If any attention is paid to the parties, it is at best cursory. The mind set seems to be that resolution lies in discussion with the legal representatives and by the encouragement or challenge that can be offered by the mediator to the legal representatives.
While in appropriate disputes this may be useful or even what the parties want – it is not mediation as correctly understood.
It is fully accepted that the parties may want to have someone respected, like a retired judge for example, to give a steer, to stress test merits, and to “knock heads together” in a useful way. There is no doubt that many resolutions are achieved by those processes. However, words and vocabulary matter. If what is taking place is not mediation, then it should not be called mediation.
It should be called neutral evaluation. It should be called an independently chaired legal conference. It should be called expert determination if that is what is taking place.
What it should not be called is mediation because the process of proceeding by discussions with the legal representatives for the parties; or the process of expressing an Opinion as to the merits of a matter; or the process of giving a prediction to parties about what may be the outcome in court, is, I suggest, not mediation.
When considering mediation for a dispute colleagues should ask about the process proposed by the mediator. They should ask the proposed mediator how they propose to conduct the mediation; will they express any opinion; will they meet with the parties.
There will of course be matters that require a Judgement and decision. That is what the Courts are for.
There will be other disputes where a joint consultation involving legal representatives chaired by a respected colleague, for example a retired Judge, will also be useful and can result in Agreement. However, it is important to recognise a distinction between these processes and the process of mediation.
Traditional (or classic) mediation can bring about so many benefits and long-term satisfaction of the parties. We should not misuse the term mediation and ascribe it to a process which is in fact not mediation.
Brian Speers, Solicitor, Mediator
Past President, Commonwealth Lawyers Association
