The first time someone considers mediation, he or she is looking for information about the process, whether it works and if so, why.
Everyone asks those questions because there is no obvious or logical reason why sitting around a table with a mediator should result in the gigantic success rate that everyone seems to agree on.
Talking is a first step
The first factor seems to be that in arranging the mediation and in instructing a mediator, the parties have started a process of cooperation. They have acknowledged a common interest.
Encouraged by a mediator, that intention to cooperate opens the minds of the parties to help them to see the forest from the sky and not merely the trees from the ground.
Change of mood
A clash of personalities is the result of lack of respect by one party of the other, based on the perception of one party’s opinion, statement, action, or personality of the other.
Whilst it is difficult to identify why someone thinks as they do, the fact of disagreement is very clear indeed.
Dominant characteristics of dispute parties in prior negotiation may have included:
- verbal bullying
- refusal to engage
- fear of expressing feelings and requirements
- apparent frustration
- aggressive body language
- multiple repetition of the same points
Such feelings are probably due to stress related to some extent, but not necessarily entirely, to the dispute.
However, a live mediation meeting provides a quite different experience from all previous negotiations.
Psychologically, the mediator is an intermediary and not merely an encouraging observer. He or she is the main person the parties are dealing with, rather than the other. Each trusts that he or she can explain and be heard and is prepared to accept the process without bringing to it the baggage of failed negotiations.
A mediation session is not a court
When you come to mediation, your expectation should be that the mediator will set up him/herself as a figure of sympathetic understanding providing legal knowledge and leadership together with the imagination and experience to be able to guide, steer and at times, cajole the participants into accepting the reality of facts, their own true best interests and the downside of failure to come to an agreement.
That contrasts with litigation where an independent court judge imposes his or her authority.
The very fact that there is no judge whom you have to persuade, or whose judgement you fear, places you in a position of power.
You can think more clearly and consider the alternatives that arise.
In a court case you are not in charge. All that you want to say is limited by what your solicitor and barrister have decided is appropriate.You are completely in their hands as to the text, the procedure and the strategy. Moreover, they are bound by the rules of court. You may even find yourself in a situation where the only flexibility appears to be that your opponent can spin out the litigation process inexorably into the future. That could even be the intention of his solicitor.
By contrast, in mediation you can change your proposals as often as you like. When both sides do that, many more options open up.
Understanding human behaviour under stress
The most essential qualification of a successful mediator is almost impossible to define. It is also very subjective.
That qualification is simply a deep understanding of how people act under stress arising from a dispute or uncertainty.
In a legal practice there is never time to be a counsellor for your client. You just have to give them the nitty-gritty, no matter how unwelcome it is, as tactfully as possible. Whilst a mediator is neither a counsellor nor adviser, the skill and understanding of human nature is exactly the quality he needs most of all.
The mediator does not try to change your opinion but approaches it laterally by explaining and suggesting alternative opinions and alternative outcomes to your dispute.
The level playing field
The second and very important use the mediator’s soft skills is in creating and maintaining a level playing field.
In absolutely every mediation, without exception, one side starts a little stronger than the other. The advantage may be a stronger case in law, or a deep understanding of the priorities of the other party, or knowledge that the other party is more susceptible to stress, or simply cannot afford to litigate, or has not been properly advised.
. . . . .or balancing the baskets
It is not simply a question of one party talking loudly. It is rather that each side’s advantages are held in a basket and one side’s basket is heavier than the other’s.
It is not part of the task of the mediator to try to balance the baskets, but what most mediators will try to do is to make sure that the imbalance does not affect the judgement of the parties in deciding how they would like to settle their dispute.
The mediator is not a social or economic engineer. His or her aim is to nudge the parties into coming to an agreement that they are both happy with, in the context of what each has in his or her basket. He or she is simply there to help to people find a way out of a conflict without litigation.
You cannot train to be experienced
It is always difficult to judge the competence of an expert you have not previously used.
One of the elements on that you will base your judgement is academic or technical qualification. If someone calls himself or herself an architect or a solicitor, you are more likely to instruct him or her to design your office tower or pursue your claim in court.
It is therefore logical for someone wishing to come to mediation, to seek out some sort of qualification. Be cautious. Experience of life, and of mediation in particular, are more important than having “been on a course”. Many organisations now offer mediation training simply to enable their new mediator trainees to be able to tick the box when they start to sell their professional services.
Whilst training certainly improves the skills of every mediator, it is not possible to train a person as effectively in soft skills as in a subject that consists in a store of accumulated written knowledge.