Scottish Mediation – Who, What, Why?

What does mediation in Scotland look like? A good place to start is with “Scottish Mediation”

Set up in 1990, Scottish Mediation is a registered charity funded by the Justice Directorate of the Scottish Government. It is an umbrella mediation organisation which exists, in its own words, to “promote mediation, support and facilitate the development of best practice and to support mediators in Scotland”. It deals with a whole range of mediation – business and commercial, community and neighbour, education (including peer mediation), equalities, family, planning and environment, work place and employment, health, religious and third sector (see more here). Its website is packed with information on what mediation is all about and its newsletter Collaborate is well worth a read. Its annual mediation conference (held in winter each year) is very well attended by members from all corners of the mediation community. 

Co-Chairs of the Young Mediators' Group are delighted to sit on both of the committees which support Scottish Mediation's strategic objectives: 

· The Committee for Promotion of Mediation champions mediation as one of the essential tools in the resolution of disputes and complaints and promotes peer mediation for children and young people to deal positively with conflict; 

· The Committee for Excellence in Mediation supports the encouragement of excellence in mediation practice and in growing and strengthening Scottish Mediation membership and the mediation community. This includes work in around appropriate standards of professional conduct and training for mediators on the Scottish Mediation Register (which Scottish Mediation maintains) and the needs of the consumers of mediation being reflected in the way in which mediation standards are shaped. 

Both of these strands of work are critical in modern mediation. Mediation is well-established in many fields of dispute, but uptake remains low in some sectors and it is less well known in others. Work such as peer mediation, which takes place in schools and in other settings with young people, is essential for long terms cultural shifts and in encouraging people how to be constructive in managing conflict. Similarly standards in mediation practice have never been more important. Some commentators, looking at the projected development of mediation and the number of mediators being trained, have expressed concerns about a potential decline in overall standards. Maintaining these and supporting the mediation community will help to gain the confidence of end users of mediation and in turn help more people to deal positively with disputes. 

You can learn more about Scottish Mediation here and get in contact here

Jane Fender-Allison and Callum Murray
Co-Chairs of the Young Mediators' Group
June 2017

Building a Successful Mediation Business - Andrew Goodman

In 2006 I commenced researching my doctorate in mediation dynamics by interviewing Karl Mackie and Richard Schiffer about how commercial mediation started up in the UK. At that time they were the figureheads for the two principal industry training bodies, CEDR and ADR Group, both of which had started operations in around 1990. I learned that by 2006 there were an estimated 15,000+ trained mediators here, and the numbers have grown substantially larger ever since.

We all know that from the earliest time, the provision of mediator training has generated a greater income stream for mediation service providers than actual service provision for mediators.  I cannot remember having been to one mediator forum over the last 25 years when anewly qualified mediator hasn’t asked where the work was to come from, or how to access the market. Many long standing mediators still ask the same question.

With no organised means of distributing work, the profession created a pyramid structure in which those in work at the top were few, often coming in the early entries, or were members of training faculties, and those at the bottom were either underemployed or unemployed, and many.  Like most professions it was anticipated that as the market grew, the spare work at the top would trickle down the sides of the pyramid. That hasn’t happened. The distribution of work in the market is uneven, erratic and difficult to analyse. It has led to many disappointed practitioners who blame the industry itself, particularly when training organisations continue to produce newly qualified mediators with unreasonable expectation, and which swells competition.

Yet the market has always been there, and is growing. It is possible to start from scratch and develop a good practice. I have seen entrants into the profession from 2008, 2009, 2010 develop good businesses even as others fell by the wayside and went back to their ‘day job’. If that is possible, members of this new profession need to understand a number of core things:  first, a 40-hour basic training course is just the start of learning what being a mediation professional is all about; much comes with experience, but a hunger for continuing learning is essential. Second, being a good mediator does not make you an entrepreneur, or a businessman,  or an expert in marketing. These are not skills taught on the basic 40-hour course. They need to be learned separately, but in the context of what successful mediators have come to know.  And third, that being a mediator is a solitary occupation. You need mentorship, even coaching, and your success needs to be honed, measured and developed with the assistance of those more experienced in order to progress.

Finally, you cannot expect to sit back and wait for work to come to you. You need to invest both time and money in developing a business, otherwise your practice in mediation will always be a homespun sideshow.

These ideas may be simple, but it has taken me 25 years to understand their force. Now Stephen Walker and I want to pass our learning to others. I work in up to 14 jurisdictions, from BVI to Hong Kong, and I see the same mistakes in organising a new profession that we made here. There is learning needed everywhere, almost all of it generic. But at least it is available. Stephen is a successful and busy mediator, as well as being a recognised author in the field.  Workshops, mentoring and coaching in the business of mediation is now available to YMG members.

Contact info@goodmanwalker.com  Next workshops Leeds 25 May, London 1 July.

Andrew Goodman

Observing a mediation - a newcomer’s perspective on what makes a mediation settle

I am not one who needs convincing when it comes to the effectiveness of mediation over other dispute resolution techniques and in particular litigation. However, as a newly accredited mediator, I am always eager to understand the factors that lead to a successful outcome. A recent mediation observation with John Sturrock, Senior Mediator at Core Solutions (http://www.core-solutions.com) gave me some answers.

The mediation process in action

The mediation day started in private sessions, the purpose of which was to create a space of confidence and to give ownership of the procedure to the parties. This was done by building rapport and by reiterating the cornerstone principles of mediation: confidentiality, neutrality and without prejudice.  The mediator’s attitude was calm and his tone was informal. This encouraged the parties to entrust him with important, though emotionally charged, information. With this information in mind, he decided how to shape the rest of the day.

Following the first private meetings, it became clear that the most effective next step would be to organise a joint session without the parties’ counsel. As can be expected after several years of adversarial communication, this session was emotionally charged. However, mutual interests and shared feelings emerged almost instantly and, despite years of dispute, I started to believe that the matter would settle easily. I however had to surrender to reality when, at 3.00 pm, the mediation had become entrenched and parties, back in their separate rooms, were reverting to their original positions.

At that point, and faced with uncooperative parties, the mediator called for a plenary session, re-established firm control of the process and moved matters forward by asking challenging questions and pressing for important points to be addressed. After two more hours of strenuous discussions the parties shook hands and the mediation settled.

What made this matter settle? 

Mediations are often initiated after months or years of disputes. Yet, according to a statistic regularly put forward when promoting mediation, 80% of the cases that go through mediation settle. During the years I spent administering mediation cases and witnessing this phenomenon, I have often wondered what makes the process so effective. Watching this mediation led me to make the following observations.

Managing the mediation process efficiently

Having recently trained as a mediator, I had decided to pay particular attention to the techniques used by the mediator to help the parties reach a common position. What I observed is that more than the mediation techniques themselves, the crucial element in the mediation process is to know how and when to use the techniques.

During the first private sessions the mediator was receptive and empathetic, which encouraged the parties to disclose important and sensitive information. This helped the mediator understand how to organise the rest of the day. During the first joint session the mediator adopted a passive stance, which enabled the parties to fully express their emotions. This shed light on common interests and needs, creating a bond. I believe this bond is what carried the parties through the mediation and all the way to an agreement. Finally, by adopting a rigorous stance towards the end of the day when difficult discussions were taking place, the mediator directed the parties back toward a constructive process, leading them to a settlement.

Tailoring the process to the parties’ needs

This leads me to another observation: even though most mediation trainings in the UK focus on a specific structure, mediations are most effective when they are flexible and tailored to the parties. I have observed various mediations and while all have been very different they have nonetheless all led to settlements. The key point in all of them was the ability of the mediator to be sufficiently analytical to understand the dynamics of the parties and sufficiently flexible to act upon the evolving dynamics by tailoring the process to the parties’ needs. Mediations are as much about emotions, misunderstandings and human interactions as they are about words, numbers and legal arguments and this should be not be forgotten.

The engagement of all mediation actors

The final, and probably most obvious, factor is the engagement of the parties and their counsel: for a settlement to be possible all actors must be fully engaged in the mediation process. In this instance the parties were willing to enter into discussion and to consider various options and counsel were well prepared and supported their clients efficiently. The mediator, by his physical presence, the words he used and his organisation of the mediation process shaped the parties’ engagement in each stage of the mediation. All of the actors had played a decisive role when the parties shook hands at the end of the day and parted with one less dispute on their minds.

Emma Reade, Co-Chair, Young Mediators' Group

Reflections on Mediate 2015

Mediators as young as nine and as old as, well I’m not quite sure, gathered at Queen Margaret University on 3 and 4 December to enjoy Mediate 2015. They did so to explore the power of mediation in a range of settings and using different styles of mediation.

For me one of the biggest learning points was about how varied the practice of mediation is. The insight provided by Kenneth Kressel into a more directive style took me a long way from the style I use when mediating at the Sheriff Court. Even though I’m not likely to adopt a radically different style of mediation it got me thinking about what I do in mediations and has made me more aware of little things that can have a big impact.

The other big learning point was from Tamara Relis who demonstrated the different outlooks and expectations between lawyers and their clients in both litigation and mediation. She described the difference as being similar to lawyers are from Mars and their clients from Venus. I think a number of people might have felt this but to be shown the academic research that confirms such feelings shows that there is work to do.

The final area that I found fascinating was how mediators and mediation organisations can easily, by the simple use of language, turn off potential clients who would otherwise be keen to mediate. Liz Stokoe in her excellent presentation on the impact of communications has made me think about how the Network [the Scottish Mediation Network] should be revising our call handling, by the use of certain words and phrases we are able to disengage clients without knowing it.

Ultimately whilst the conference was great and I learned a lot, perhaps the greatest value was in simply bringing mediators and those interested in mediation together. The value of shared experience is huge and the sense that we have the power to influence ministers and government to adopt a wider use of mediation is something that will keep driving me forward over the next year.

 

Graham Boyack, Director of the Scottish Mediation Network

Mediation – what’s your role?

On 30 April 2015 the Committee of the Young Mediators’ Group attended a Society of Construction Law lecture,  presented by Dr Andrew Agapiou LLM PhD, Senior Lecturer at Strathclyde University and practising commercial mediator. 

Dr Agapiou’s background is in engineering and architecture, moving on to construction management and arbitration before delving into the world of mediation and conflict resolution.  He’s now been carrying out research for the past five and a half years on mediation, with a focus on construction mediation. 

Dr Agapiou presented a thought-provoking session on the findings of his research to date.  It looked at questions such as how is mediation used in construction in Scotland?  What are the experiences of users?  And of providers and lawyers?  What are the barriers to mediation? What sort of demand was there for mediation?  Where might it go in the future?

What was of particular interest was that the research is looking at the role of different parties in mediation, something which is important for all of us involved in mediation to reflect on.  For example Dr Agapiou’s research considered whether lawyers act as “gatekeepers” and even barriers to mediation.  Do lawyers encourage or inhibit the interest of clients or others in mediation?  What do we do ourselves?  Why?  There are a huge number of factors involved in any one case and it is safe to say mediation isn’t suitable in every situation, but questions as to how and why we act the way we do around mediation is certainly something to think about. 

Find out more about Dr Agapiou’s research here and look out for the next stage being published in 2016.

Jane Fender-Allison Co-Chair Young Mediators' Group

ICC Mediation Competition 2015

The ICC headquarters in Paris this year hosted the 10th annual International Mediation Competition from the 5th - 11th February 2015. 

Aside from consumption of coffee, croissants and attending evening cocktail parties, the worlds top 130 mediators and expert academics coverged upon central Paris to share best practise, facilitate and judge student teams from business and law background in a competitive mediation situation.

The participants travelled from as far as New Zealand, China, Russia and South America. 67 Universities were represented with students from 49 differing countries with an almost even spread between male and female amongst the 500 or so students.

The status and prestige of the event is evident through the headline support from KPMG, Clifford Chance, Eversheds, Linklaters, CEDR, McDermott Will & Emery amongst many many others. The prizes for winning teams include internships with CEDR, the ICC, Eversheds, a shadowing program with JAMS in its New York office amongst several other "money can't buy" opportunities.

So what is the ICC and what part does it play in all of this? The International Chamber of Commerce or ICC, was created in 1919 by a group of entrepreneurs to represent business globally and provide a mechanism to govern trade with rules and processes to collaborate and resolve disputes in the private sector. Things have developed over the years with the ICC maintaining its place at the forefront of commercial diplomacy with mechanisms supporting international dispute resolution, business leadership and collaboration.

The level of preparation, planning and skill of those participating in the ICC's International Mediation Competition is evident. Competing teams involved undertake role plays of complex business negotiations. Both client and counsel are played by students whilst the mediator provides a very realistic account of their interventions and facilitation. Cultural differences in styles and approaches to reaching settlement are evident.

As the week progresses, teams move to the latter stages of the competition and emotions run high. The whole experience for those involved certainly does reflect the reality of complex commercial disputes: not all apologies, friendly hugs and apple pie. The opportunity to take part whilst networking with global peers and absorbing practical advice provided by the world's top mediators is something any aspiring law or business student should give full consideration.

The growth and popularity of mediation as a tool within commercial dispute resolution is something which is set to grow exponentially as commodoitization arrives in legal services, "med - arb" or  "arb - med" gains traction and legislation moves towards the inclusion of ADR mechanisms within Civil justice frameworks across the world.

The work of Etienne Clementel as founding president of the ICC has endured almost 100 years of change and progress. I expect the ICC mediation competition will continue in a similar fashion whilst the business leaders and top legal counsel take their experiences and new found friends into the future enabling international cooperation and trade for the centuries ahead.  

Callum Murray - Co-chair Young Mediators' Group