David Richbell

Behind every dispute Lies a broken relationship

Richbell David 2012I (David) am a red-blooded Commercial Mediator. I get settlements. Indeed I tell the parties “My role is to give you the best chance of getting a deal”. But I try to be nice when I am doing it!

Jane, on the other hand, is nice without trying and tends to give more time to the parties relationships and not necessarily to problem-solving. She still gets results but usually through what she terms as ‘slow mediation’ (in the mode of slow, rather than fast, food).

What we both accept is that we can learn from each other’s style and techniques and we do so by co-mediating together occasionally.

Mediation is a very solitary business and, once we have established ourselves as lead Mediators, it is very rare that we have the privilege of seeing our peers in action. That is one reason why MATA introduced the peer review scheme last year, where one lead Mediator sits in with another lead Mediator and gives honest feedback afterwards. Despite being acknowledged by many Mediators as being very important, so far only a few leads have joined the scheme and I do wonder if that is out of fear about a colleague observing, and commenting on, their performance!

The point of this is that we Mediators are in danger of being isolated,

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Who is at the Centre of Mediation?

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

The Party

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.

The Lawyer
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.

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Proposal: Peer Reviews & Mediator Monitoring

Background

In June 2011 MATA published a paper “Route to Mastery”, proposing a process of achieving continued excellence in mediation. One of the proposals was for Mediators to commit to one, or more, peer reviews each year, that is, for another experienced Mediator to sit in on an actual mediation to give the lead Mediator honest and constructive feedback. The reasoning for this proposal is the fact that mediation is a solitary process and that even if the Mediator usually has an Assistant at the mediation, such Assistant is likely to be inexperienced and therefore unlikely to give useful feedback. This is consistent with the IMI (International Mediation Institute) certification of MATA as a provider of advanced training programmes.

In addition, the paper proposed a Mentoring responsibility by experienced Mediators towards those of less experience.

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Revealing MASTERY….

Revealing MASTERY….

With the tenth anniversary event only days away, the MATA faculty, can now unveil the latest key concept – Mediation Mastery. This new theme will be uncovered and explored in depth at the event running from 7th – 11th July, and in particular at the Peter Adler two-day workshop (see below).

We introduce in this key paper the ROUTE TO MASTERY..

Route to Mastery

Purpose of this paper

For the past ten years or more, we[1] have been training commercial Mediators at every level – foundation, through the Mediator Training Course; intermediate through a series of courses that build upon the foundation training; and advanced, particularly through the annual international Advanced Mediator Retreat.

Our training is always mediation-centred and is delivered by practising Mediators.

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Breakfast Club

Breakfast Club

David Richbell, Dave Owen and Michael Cover invite you to join them at the

MEDIATOR’S BREAKFAST CLUB

on Wednesday 15th January 2014 with Neil Robinson (Former Vice-Chairman of the Family Mediators Association, Mental Health Tribunal Judge and Visiting Professor at Staffordshire University).

Topic:  Intense emotions in (family) mediations – complicated or complex?

At The Punch Tavern, 99 Fleet Street, London, EC4Y 1DE, www.punchtavern.com

Attendance counts for 1 CPD point towards CMC requirements.

Breakfast is served in the private dining area. The menu offers Croissants, pastries, buttered kipper, eggs Benedict, devilled Kidney, full English breakfast or a simple omelette.

£5.00 is payable on the day.

David Richbell, Dave Owen and I very much look forward to seeing you at this event, where we are returning to our original theme of developing our practices as mediators and developing the overall market.

Please let us know whether you will be attending, so that we can get the catering arrangements right. We may have to limit the numbers, so please respond as soon as possible. Also, please let us know if you have any special dietary requirements. Email dwo@pengaron.co.uk to confirm your attendance.

There is also a Mediators’ New Breakfast Club group on LinkedIn.

Best wishes,

Michael Cover

mc@michaelcover.com

☎ Tel: 020 7203 5134
☎ Mobile: 07766 225 128

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