What’s the big idea about mediation?
The current narrative is that mediation is quicker and cheaper than going to court, preserves relationships (which a court can’t do), comes up with a range of settlement options (again, which a court can’t do), and is confidential (which a court isn’t). Compelling though these reasons are, they’re well out of date and need urgent change.
Because while all the things above are genuine benefits of mediation, they probably help the justice system way more than the actual parties.
In fact, the real advantage of mediation over going to court is the highly skilled mediator who drives the process.
Think of it like a car. If there’s no one actively driving, however high the spec, it goes nowhere.
What drives mediation
So why do the disputing parties – the people who pay the bills – want mediation?
It’s simple. To get the job done. To resolve their dispute and move on.
And the best way to reach a resolution? With the guidance of an experienced mediator who is innovative, knowledgeable, commercially astute, calm and brave. Someone who can communicate with discretion and respect. And, of course, someone who won’t bankrupt either party.
“I had rather have a skilled, neutral, negotiating mediator who knows what he is working for and loves what he knows, than that which you call a lawyer and is nothing else.”
Forgive my interpretation of Oliver Cromwell’s famous saying on the introduction of the New Model Army in 1645. However, it’s worth noting that the New Model Army was built on merit and achievement; it never lost a battle until it lost its sense of moral, political, and religious direction, increasingly forgetful of the inspiring ideals that had launched it.[1]
How to recognise success
A mediation is successful if the dispute is resolved (although there are other measures of success). And resolution depends on both the impact of the mediator and the behaviour of the parties.
The parties are the ones who stand to gain from the process. It’s down to the skill of the mediator to guide the parties towards resolution. In turn, the parties must commit to the process, assure the mediator they hold the authority to resolve the dispute and work honestly and constructively towards achieving a voluntary settlement.
These are the inspiring ideals of mediation: a voluntary, non-coercive and flexible process.
Both parties must be willing to appoint a mediator, plan a strategy and commit to the process if they are to bring their matter to a conclusion as quickly and completely as possible. Therefore, mediation is not suitable for every dispute.
Mediation is not to help the court system reduce its logjam. Nor should it result in a floppy agreement that is unenforceable and that simply improves the settlement statistics.
So how should we measure what getting the job done means?
My experience tells me success lies in customer satisfaction.
People stop buying professional services for different reasons, the main ones most likely being:
- Price
- They were sold something inappropriate that they didn’t need or want
- They experienced poor or indifferent service or an unhelpful attitude or bias.
If the current narrative doesn’t change, mediation’s voluntary, non-coercive and flexible process will continue to be seen as a junior alternative to the justice system. When the logjam is dealt with, it could even disappear.
However, skilled mediators will always be in demand: the people who know what they work for and love what they know.
[1] The New Model Army – agent of revolution, Ian Gentles
