Three angles on mediation
There are different ways to experience mediation. One as a client, another as a legal representative, and the third as the mediator. I have been fortunate to have experienced all three. What is notable is that while they all have a part in the mediation process, each has a very different perspective.
Mediation provides the opportunity for parties to resolve all types of dispute in an efficient and professional manner, and often within a short timescale. As mediation is increasingly seen as a normal part of the dispute resolution process, the benefits for a client are self-evident. For the solicitor mediation is an invaluable process because it allows the client, with the assistance of the mediator, to be central in seeking an all-embracing resolution of their dispute. My advice to legal representatives is to resist the temptation to over analyse the issues in dispute or seek to make pure legal points no matter how relevant and informative they may be in any parallel litigation process. Mediation offers a neutral time and space and a huge opportunity for clients resolve their dispute. Encouraging a client to place its trust in the mediation process and encouraging a desire to settle is an important part of the process. Not only does a resolution save costs, but the outcome is often more all-embracing than would be available within the usual scope of litigation. What client would not be happy to achieve such an outcome?
I have also been the client in mediation which was a very different experience. I was the Trustee of a Will settlement which gave rise to some complex issues arising from the deceased’s ownership of the entire shareholding of an engineering company, and his widow’s claim against the estate arising from the provision the deceased had made for her. At the same time as trying to address the widow’s claim, there was a pressing need to sell the company as the testator had gifted his shareholding to charity. The dispute was referred to early stage mediation. As the client I had to resist the instinct to see the mediation process through the lens of a solicitor and look narrowly at legal issues and potential legal outcomes. Happily, the relationship with the widow had remained cordial at all times and with the assistance of the mediator the focus was very firmly set on seeking to resolve the issues., leading to a successful outcome. This not only resolved all issues with the widow but did so in a manner that was respectful of her loss.
Finally, an accredited mediator will always ensure that the parties are aware that the process is theirs, and that it is confidential and facilitative so that any decision making will be left to them. As a mediator I can have no decision making authority, however, I will offer a structured, but nonetheless flexible, process for the parties to make best use of in seeking mutually satisfactory solutions.
Mediation belongs to those in dispute. It is not about rights and wrong is in a pure legal sense but with the goodwill of the parties, the support of their legal representatives, and the facilitative assistance of the mediator, there is always a real opportunity of resolving a dispute on a lasting basis and one which delivers the benefits of an agreed outcome against the uncertainties of any ongoing adversarial, and considerably more costly, legal process.
Michael Wilson