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Some thoughts on Mediation
In the January publication (p.23) there is reference to a possible 'register' of dispute resolution practitioners. I applaud this initiative but just comment on the suggestion that 'Profession and Type of Work Undertaken' be criteria.
Although related professional discipline may be essential for arbitration, it is not necessarily the case in mediation and it may be incorrect for potential users of the register to feel obliged to approach mediators from their own sphere of activity.
Arbitrators, almost by definition must have some expertise in the matter under dispute; for the mediator the situation may be different.
The common models of mediation - Settlement, Evaluative and Facilitative may call for different mediator characteristics. Settlement Mediation, aiming for a compromise through incremental bargaining, may have an emphasis toward the need for managerial or legal skills from the mediator rather than the actual skills of mediation. Again, Evaluative Mediation, requiring a settlement meeting the entitlements of the parties, calls for expertise in the subject of the dispute - maybe without the knowledge and experience of mediation techniques.
By their very definition, Settlement or Evaluative Mediation may well call for the parties to select individuals of particular expertise to assist and indeed control the settlement in a process, which they may not even regard as mediation.
Facilitative Mediation or "Classic Mediation" requires the mediator to act merely as a catalyst, prompting the parties to control the content of the process and create a settlement themselves. The demands upon the mediator are significant and in some respects differ from those upon an arbitrator, as do the skills required.
Of prime importance are the requirements for the mediator not to give opinions or evaluate the strength of argument and to resist pressure from the parties to make decisions on the dispute. The parties formulate the outcome.
With an arbitral or legal background, it is very difficult to hold back, particularly if an obvious solution presents itself! There have been very few classically trained musicians who are later convincing exponents of jazz. An analogous problem arises in the transfer from the rigid formality of the legal or arbitral process to the flexibility and informality of mediation. Similarly, an expertise in the subject matter can be a disadvantage, both from the point of view of the mediator and indeed, the parties.
A mediator of a different professional discipline is generally immediately accepted as a neutral entity. Some spheres, such as commodities or maritime, are almost incestuous, in that many experienced practitioners may have had some commercial involvement with the majority of other enterprises.
A mediator of experience in the subject of dispute can be very tempted to stray into the Evaluative or Settlement mode in which case the parties may well lose trust in the process. As an 'outsider' the mediator can only be observed as a facilitator in which case there is a much greater chance of success.
The foregoing is not designed to debar mediators from the trade from dealing with disputes therein, but to emphasise that it is not a necessity and can be a disadvantage. No doubt, the appointment procedure requires both parties to agree a mediator and the chances are that they will find it more convenient to find someone in their own discipline than out of it but it may be incorrect for the Branch to impose or imply restrictions.
Clem Danin