Mediation is a procedure whereby two parties sit together with the impartial assistance of a trained third party to lay out, discuss, summarise and prioritise their issues, then explore the options open to them before arriving at a satisfactory solution. As long as there is co-operation on both sides, it is a simple and satisfactory process. But, if either party is forced into mediation, or participates reluctantly for any other reason, it will prove problematic.
When a party chooses not to engage fully, mediation can result in stalemate. One party may be put off the idea of mediation by someone outside the process, and each party may decide to terminate the mediation at any stage. Some feel that they will be more likely to get the outcome they prefer from the court, and have to be persuaded that mediation is a better alternative.
It is important that the mediator and both parties sign a mediation agreement before the exercise starts – whether it comes from the court, recommendation from either party, or whether parties come to it voluntarily. It has to be in standard English, so both parties can understand the process of mediation, which, is essential as preparation for all that lies ahead, especially if it’s their first time. Not only must they be aware of the many benefits, but also that they are free at any point to withdraw and work the dispute out between themselves or via their solicitor.
Often, one party comes with the mindset that the mediator is going to assume full control and responsibility, so they sit in a corner and fail to share the key facts of the case. They end up relying too heavily on the mediator and this leads to a dynamic which ultimately can cause meditation to fail. It is very important for the mediator to establish from the outset that the parties are really clear how the process works, and are supportive of it. So, the failure of mediation is rarely down to the mediator; he is only responsible for the successful instigation and management of the process. The parties themselves have to commit and comply. If they are unable to reach a settlement and mediation fails, even after following all the standards and due process, then it can’t be helped. It’s not a mediator’s job to force a result, and they have to accept the failed mediation as the best possible outcome in the circumstances. These occasions are relatively rare.
As a mediator, I follow the line – the code of conduct. I follow if from my initial introduction to the parties, engaging with them, listening to them, managing them, understanding their issues, and guiding them towards a settlement. The worst mistake that a mediator can make is a breach of confidentiality. This can happen when a mediator repeatedly comes and goes between parties, collecting and passing on information, and, as a consequence of human error, becomes exhausted and slips up. Inadvertently disclosing some detail that should have remained confidential.
Although there are potential pitfalls with the process of mediation, it could be said that, in reality, mediation never entirely fails, because the parties will always come away knowing more about the dispute and, probably, at least having narrowed the issues in question. It is a relatively low-risk process that enables the parties to have control at all stages, whilst having the expert help of an impartial adviser.
No, I did not make the ABA's Blawg 100 this year, but my good online buddy, the brilliant and energetic Susan Cartier Liebel of Build a Solo Practice and Solo...By Victoria Pynchon