‘What is Mediation?’

‘When parties in dispute sincerely and deeply understand each other, then they can open a hidden door to creative settlement in Mediation. That is because their “differences” have been transformed from being obstacles to communication and progress, into “stepping-stones” to synergy. In other words, [working together – the Mediator and Mediation Advocates can help the parties in dispute i.e. the participants in the Mediation], to set themselves free from the past, by [themselves] working together to bring about a better future.’ (Extract from Chapter 7 – ADR of the 2nd Edition of my forthcoming book, the 2nd Edition of the ‘Contentious Probate Handbook’, which is due to be published by the Law Society later this month).

Mediation, which as a process, can be carried out either in person or online, is essentially a forward-looking conversation.

The role of a Mediator is to manage the process and ensure that it is conducted in accordance with the terms of the ‘Mediation Agreement’ signed by everyone attending the Mediation.

The Mediator must also:

– Create an environment in which adversarial parties in a confrontational dispute can come out of their ‘positional’ trenches and walk towards the centre of the commercial problem which divides them.

– Empower adversarial parties to a dispute to become participants in a creative, bespoke and collaborative problem-solving exercise, and eventually, to walk side by side in jointly exploring and developing a commercial solution of their own design which takes into account: the facts presented in their respective position statements; the documentary evidence in an agreed bundle of documents; legal merits; litigation risks; the time value of money; and the benefits of ‘doing a deal’ now, instead of incurring further legal costs by resuming trench warfare and proceeding to trial.

This requires ‘counter-intuitive’ thinking and behaviour and can result in a ‘paradigm shift’ which results in a creative solution that a court cannot impose.

It therefore also requires a ‘commercial’ rather than a ‘forensic’ legal and procedural mind-set, and some imagination.

The challenge for a mediator is to persuade each participant to identify (in strict confidence) what is actually at stake, i.e. to drill down to what each participant’s individual objectives, needs and priorities are, and to understand why.

While it is not the function of a Mediator to speak truth to power, a Mediator can facilitate the re-framing of a dispute as an opportunity, by enabling each participant to think about what is important to them, so that the participants can jointly agree upon a ‘methodology’, i.e. a ‘road map’ for convergence and consensus.

This requires a ‘paradigm shift’, i.e. acceptance by each participant that there is a better way of resolving their dispute than proceeding to trial.