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