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To Editor of News and Views Journal Dear Sir, I was most interested to read the excellent Article and Report by Kevin Trash on Mediation in February's issue of News and Views. Pressure of work has prevented me from responding to the article, as he generously invites, until now. The example of how he managed to mediate by telephone stands as something of a gem for the victory of mediation over other forms of dispute resolution and a remarkable example of what can be achieved by open thinking. I had a similar experience, although perhaps not quite so dramatic, a year or so ago. The parties, an architect and a builder were in an even worse relationship. The builder had physically assaulted and done considerable injury to the architect and was being actively charged for the offence. In retaliation, the architect, (or so it was alleged) had threatened to "do in" the wife of the builder - or it might have been the other way round. I can't remember. As in Kevin's case however, neither wanted to meet the other, though they both wanted to get a cheap and quick solution to their dispute. By suggesting that the quickest way might be by mediation, and getting them separately to agree to see me so that I could explain what was involved, I managed to get them into the office by allotting each of them separate rooms when they arrived. I then suggested that it would be far quicker if I explained the process to them together to save time. Reluctantly, they agreed but they quickly became so interested in the mechanics of the process, and how it might apply to their case, that they started discussing together how they would like the process to work for them since there were substantial areas of dispute between them. They were soon agreeing on this and rebuilding what had clearly been a highly fractured relationship. At the end of an hour or so they both happily agreed that there should be a mediation and a date was fixed. They went out together, hand in hand, to the nearest pub. You can guess the rest. Next morning each phoned me separately to say that they were very grateful for my advice. As a result, they had resolved all their differences in the pub after they had left me and accordingly no longer require mediation. As is so often the case, one did not get paid, but the satisfaction of the parties having settled their differences as a result of one's influence is reward enough. However, my main point is writing is this. Kevin and Amanda Bucklow do raise an important point of principle in respect of mediation generally - and that concerns the professional standards which a mediator should possess. In a number of mediations recently, where I have acted for parties, I have been bitterly disappointed by the services provided, or should I more accurately say not provided, by the appointed mediator. So often, no attempt is made whatsoever by the mediator to restore relations between parties, suggest that parties explore their interests rather than their wants or needs; get them to generate options, investigate 'Watnas' 'Batnas', 'Zopas' or the like; or use any of the tools that are essential to a successful mediation. Rarely have I seen, for example, a mediator who knows how to break, or indeed attempt to break, an impasse. Whilst the success of most mediations is undoubtedly that of the parties themselves, the mediator is there to assist, actively assist, the parties to negotiate. The mediator is not there to closet the parties in separate rooms and run backwards and forwards carrying messages in a vain attempt that the parties might eventually agree on a compromise financial sum, as seems to be the practice of many mediators I have experienced. This is also partly to do with mediator's training. The training standards and methods of different institutions vary enormously, but when examining for accreditation, one often finds for example, that would-be mediators have no idea how to properly make use of combined sessions as opposed to caucus meetings. All too often the combined sessions are foreshortened far too early preventing the parties from, for example, rebuilding any common interest or relationship, listening to each other's case, identifying areas of common agreement or jointly exploring options for settlement. Frequently the parties are left floundering in their negotiations simply because the mediator has not even attempted, in combined session, to get them to agree, or at the very least identify, the issues between them. The parties enter into a contract with the mediator; that in return for his "services" they will pay him or her a fee. When the mediation fails, because of obvious shortcomings in the mediator's services, parties should have a right to claim that the standards and conduct of the Mediator has fallen so far short of what a Mediator should provide that his or her fee should be forfeit. The question in such a case is how do you judge whether or not a mediator has performed so badly that he should forgo his fees. In the absence of any universal agreement on what is meant by the "services" he or she contracts to provide, it is going to be impossible to answer. There are no set standards (apart from the codes of conduct) and as far as I know there have been no cases where negligence has been alleged against a mediator. A typical mediation agreement, in addition to the usual confidentiality clauses will provide that the Mediator:-
OK. Well they all do 1 and 3 pretty well. I doubt whether 2 is always complied with. In some cases the issues in pre-mediation statements are so complicated, technically and otherwise, that unless the mediator has experience in the relevant subject matter, he won't be able to understand them even if he does read them. In any event, in my view, expertise in the subject matter is usually primarily of assistance only in evaluative mediation and here we are talking of facilitative mediation. Anyway, how can you tell whether the mediator has, or has not, really read and understood the pre-mediation papers? I recently acted in a multi-party mediation for a party where the mediator clearly had not read the papers, but it would be extremely difficult to prove. But the real bug-bear is in 4. How do you judge or define "assistance" . If one is a solicitor, one 'assists' one's client by advising on the law from one's knowledge of the law. If a doctor, one 'assists' by prescribing a remedy from one's knowledge of medicine. If an accountant, one 'assists' by advising and presenting accounts in proper fashion from one's accountancy knowledge - and so on. If one is a mediator then one should be 'assisting' the parties to negotiate a settlement from one's expertise and knowledge of the art of negotiating. How rarely, in mediation nowadays, does one see this particular facet of a mediator's duty being exercised. One wonders sometimes whether the mediator is even aware of the basic concepts of, for example, the difference between distributive and integrative negotiation, of the different tactics used, or of how to deal with the common problem of partisan perceptions etc. There is little evidence of it. In conclusion therefore, in my view there is an urgent need for an acknowledged standard by which mediators can be judged. Otherwise, how can the integrity of the profession be acknowledged. Lawyers are judged by whether the advice they give does accord with the law. Accountants likewise. Doctors by whether they treat patients in accordance with best practice and accepted standards. Mediators should likewise be able to be judged and held negligent if they fall below accepted standards. The Branch Mediation group will be looking into this question in the next few months and will provide a report. Contributions from one and all would be greatly welcome. And, once again, Kevin, thank you for an excellent article and report. Yours faithfully, R.D.O'Driscoll. . |
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