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.
Breakfast Club
David Richbell, Dave Owen and Michael Cover invite you to join them at the
MEDIATOR’S BREAKFAST CLUB
on Wednesday 10th July 2013 @ 8.00 a.m for 8.30am with guest speaker Stephen Ruttle QC of Brick Court Chambers. Over the last 12 years Stephen has mediated very many commercial, community and faith-based disputes. He believes that commercial mediators need to see themselves as part of the wider mediation community with a significant role to play in the development of a national peace service.
Topic: Towards a Community Peace Service – using commercial mediators to help deliver the vision.
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
☎ Tel: 020 7203 5134
☎ Mobile: 07766 225 128
Mediation in 2020
Michael Leathes considers, ‘Where in the world will mediation be in ten years time?’Yogi Berra made his name not only by winning the 1968 World Series as coach of the New York Mets but with malapropisms like “half the lies they tell about me aren’t true” and “always go to other people’s funerals, otherwise they won’t come to yours”. But his remark that “the future ain’t what it used to be” was more profound. Change happens faster now. The near certainties of the past look more like unconvincing theories. Our ways of leading, winning, educating, negotiating, daring, innovating and succeeding are being reinvented. The future is upon us more quickly than before, making a 10 year forecast a lot more challenging.
Yet accurate predictions remain vital to social and economic progress. Major companies still predict decades ahead, adapting their assumptions as time goes by, refining the scenarios. For example, the focus of the World Business Council for Sustainable Development, an association of 200 international companies, is what the world will look like in 2050 and convenes chief executives across all sectors worldwide to collaborate in ways that will enable society to be sustainable in 40 years time.
So, what about the mediation industry? Is it doing anything similar? Setting aside the obvious role that effective dispute avoidance and prevention can play in achieving a sustainable society and economy, the immediate question is whether the main players in mediation are taking steps to drive, grow and sustain the field itself. Where could mediation be in 10 years time?
Read the full article in the library, papers section…..
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