The claim is low value, liability looks straight forward, and your client is always wanting costs to be lower … avoiding the expense and logistics of a mediation may be appealing.
At last few mediations it didn’t feel like the mediator is actually adding much …. again, avoiding the expense and logistics of a mediation may be appealing.
While I may be a mediator, first and foremost, I am a believer in alternative dispute resolution and if an informal settlement conference (“ISC”) suits the matter, then I’m all for it. However, to be able to properly advise your client on the form of alternative dispute resolution appropriate for the claim, you need to understand the pros and cons of each.
When may an ISC be suitable?
There are a wide range of claims which can be resolved quite successfully and cost effectively at an ISC. In particular, a two-party claim where:
- The parties do not hold wildly divergent views on liability and quantum;
- Both are represented by lawyers who have, throughout the course of the matter, generally had a collegiate and cooperative working relationship and no power imbalance exists between them;
- One, or both of the parties, do not wish to have an opportunity to “be heard” or be actively involved in the negotiations.
- Both parties seem to be willing to compromise to bring the matter to finality; and
- (finally) there are real pressures to keep legal costs to a minimum. Although, unless all the above factors exist, this may prove to be a false economy.
The perception held by some lawyers is that the value added by mediating does not always justify the cost. Significant costs will (or should be) incurred by each parties lawyers preparing for any settlement negotiation, irrespective of whether a mediation or an ISC. So perception may reflect the approach of the parties and the choice of mediator, rather than the inherent nature of the mediation process – so let’s unpack the merits of the process further, before disregarding it.
What is it about the mediation process that is of value?
There are several different types of mediation, such as evaluative, restorative and facilitative. Given that all Australian nationally accredited mediators are trained and assessed in the facilitative model, I will focus on the features of that model.
In the 25 years that I practised as a lawyer, I rarely gave any thought to what it meant to be an accredited mediator. Naively I simply assumed that the mediator was a go between, passing through offers and pushing and prodding a bit to lead the parties to a compromise. But to be fair, as the lawyer advocate, I only ever saw one side of the process.
An accredited mediator will lead the parties through a staged process which has recognised benefits – on a very simple level it involves a neutral third party (ie the mediator) assisting the parties, jointly and separately, to identify the issues in dispute, consider alternatives for resolution and try to reach an agreement. Many facilitative mediators will include elements of evaluative mediations – that is they express an opinion on how a case may be quantified or the potential merits of various positions. In many civil claims it is that last element that the lawyers may find helpful, however the key is the manner in which it is done by the mediator. That will be a topic of another post.
So what is it about the mediator process that is different to an ISC? Here are just a few elements worth mentioning
Many parties need to feel that they have had the equivalent of a “day in Court”, the opportunity to voice their complaint and have their story told. While Court documents and correspondence may have put it in legalese, a mediation provides two unique opportunities for a party to be heard – in an open session with all participants around the table and separately with the mediator.
I spend a lot of time, prior to the open session and separately throughout the course of a mediation speaking directly with the parties; listening to their perspective of the dispute, letting them tell their story to me and then working with them to think rationally about how to explain their position or make a decision that is guided by their head and not their heart. In psychology terms, done well, the mediator can be a buffer between the parties, keep the parties in the zone where rational decisions can be made, minimise the chance of an amygdala hijack and, if it occurs, work with the party to get them back into a state where they are not driven purely by emotion.
The mediator’s neutrality. Being jointly retained by both parties, a mediator takes on the responsibility of guiding the parties through the mediation process and providing the roadmap for the discussion. There have been many occasions where I have learnt information in private sessions that makes it clear that there is a divergence in the understanding of the underlying facts or interests that needed to be clarified to break an impasse.
The mediator can also act as a filter between the parties, managing power imbalances and adjusting the environment and tone of discussions. If the lawyer works together with the mediator, they are able strongly advocate for their client (including the posturing and chest beating) with the comfort of knowing that the mediator may prevent them from unintentionally putting their client in a position which would be hard to move from without losing face. The mediator can also make the lawyers job easier, reiterating client the unpredictability of litigation, the benefits of resolution and common ebbs and flows of negotiation.
Common indicators that a mediation may be appropriate
With a greater understanding of what an experienced accredited mediator brings to a mediation, if the following situations exist, your client may well have a greater prospect of achieving resolution at mediation as opposed to an ISC:
- There are multiple parties and/or multiple issues in dispute;
- There is serious disagreement over what information is important or relevant to the resolution of the dispute;
- Past conduct, or ongoing behaviour, by one or more parties has created a barrier to effective communication;
- Parties, or their lawyers, lack trust in each other;
- There is a high level of emotion associated with the nature of the dispute, or it’s resolution; or
- Your client has unrealistic expectations, or expectations driven by something other than their legal position.
Whilst this is not an exhaustive list, a mediation can provide a sense of occasion, the opportunity for the parties to engage with one another (albeit via a mediator) and regain some power over how the matter is resolved. Whilst is it not impossible for that to occur during an ISC, the prospects are much greater when an experienced, accredited mediator acts as a facilitator and conduit between the parties.
If you would like to discuss whether your matter would be better suited to a mediation or an ISC, please contact me on 0421 048 456 or by email – email@example.com. You can also connect with me on LinkedIn to share information in relation to mediating generally. My available dates, and bookings, for both face to face and online mediations can be found on the website, or by calling me on 0421 048 456