‘Although anyone can set up shop as a mediator, the process depends hugely on the skills of the person conveying offers from one side to the other’
Mediation is one of the great mysteries of the law. Senior judges frequently order litigants to leave court and find an alternative way of resolving their disputes. But those same judges have no idea how mediation works. The process simply didn’t exist when they practised at the Bar.
Journalists, too, complain that they are excluded from mediation. That is why it is such a popular way of settling commercial disputes. Unlike litigation, which is largely public, mediation is always private.
But not so private that I cannot tell you how it works. Not only have I watched a mediation session from start to finish, I can disclose to Standpoint readers that I am now an accredited mediator.
Although both mediation and arbitration are types of alternative dispute resolution, there is a crucial difference. An arbitrator listens to the arguments and issues a ruling that both sides have agreed, in advance, to observe. It can be enforced, if necessary, by the courts.
This process is used by bodies such as the Muslim Arbitration Tribunal, which decides disputes in accordance with Islamic law. Because the tribunal’s rulings are enforceable under the Arbitration Act, there are concerns that vulnerable parties may feel under pressure to accept a system that may deprive them of rights they would enjoy under English law.
Mediators cannot deliver enforceable rulings. Instead, they try to help the parties reach a compromise that is acceptable to all sides. All that a mediator needs to resolve a simple dispute is three rooms: a base for each of the parties and a third where the two sides can meet.
For the mediation I attended last year, the parties had booked rooms at an Oxford graduate college. My first mistake was to send the mediator in completely the wrong direction by misreading a sign that said MEDITATION.
It is normal practice for the mediator to start by inviting both parties and their lawyers into the same room, albeit on opposite sides of the table. The mediator will explain that he or she is not an arbitrator. It is the mediator’s job to help the parties to settle their own dispute by shuttling between the two sides. What’s remarkable is how often the process works.
The case I observed was an employment dispute in which each side was claiming money from the other. During the course of the day, one side backed down and, after a series of offers, eventually agreed to pay the other side a substantial sum. But not quite enough. When the payer’s final offer was rejected during the evening, the man who’d agreed to make a payment put on his coat and stormed off.
It looked as if the day had been wasted. But the mediator asked the would-be payer to keep his final offer open until the end of the week. Late on Friday afternoon, the potential payee backed down and accepted the deal — as I had guessed he would. The alternative would have been costly and time-consuming litigation. Both sides simply wanted to move on.
Although anybody — even a journalist — can set up shop as a mediator, the process depends hugely on the skills of the person conveying offers from one side to the other. It helps if the mediator is familiar with the area of business in dispute, if only so that he or she can follow the jargon and predict what a court might do.
Sometimes, what’s needed is the skill of a diplomat. And that is why nine former British ambassadors have recently trained as mediators with the ADR Group, one of the bodies that specialise in dispute resolution. I trained alongside them, and very good they were at playing the roles of awkward trading partner and emollient mediator.
Sir Stephen Brown, a former High Commissioner in Singapore and co-chairman of ADRg Ambassadors, tells me that the ability to negotiate settlements is one of the principal skills that one acquires in a diplomatic career of 30 years or more. British diplomats are often called in to resolve disputes between the host government and a UK-based business.
“One of the definitions of a diplomat is that he builds ladders for other people to climb down,” Sir Stephen says. He recalls a problem that arose in China when the central government unexpectedly changed its tax laws, rendering a newly-constructed British factory unviable. “We influenced the Chinese into thinking that it was in their long-term interest to find a solution.”
Having resolved the dispute in a way that allowed both sides to feel they had emerged victorious, he now relishes the prospect of using his newly-honed skills to find common ground in unfamiliar places.
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