What is a good mediation?A good mediation result surely would be a mediation whereby your dispute is resolved and you get everything you want out of the process, for example you win, and the other party loses?
Therefore, if you had a commercial mediation and were claiming £50,000 for a breach of defective work and delay, and you got the whole £50,000 back through your construction mediators, surely that would be a good result?
It may well be a good result, but it would be a very unrealistic result. Court litigation is about the parties presenting their evidence, being cross examined, who has, has not broken the law. Ultimately, who the judge actually believes. Whereby they award judgement, and one-party wins, the other party loses.
Mediation is where both, all the parties win. Nobody loses, a solution is not imposed upon them, they work with the mediators who help them facilitate a solution.
An effective mediation would be where both, all the parties get something out of the final result, hence why the parties need to compromise, be sensible, realistic, and not expect the other party to concede something, that they would not be willing to do themselves.
A long-standing debate amongst the mediation community is, can a mediation actually have been effective, even if a solution is not reached? As a mediator of twenty-three years standing, I would say yes.
Having dealt with solicitors at many mediations, some have told me that they have used mediators who got their clients to a settlement, but, the way they did it, through bullying tactics, not actually mediating correctly, left the clients with a solution, but not a very good experience, which they did not appreciate.
I would much prefer a client to be satisfied that I their mediator, had mediated correctly, albeit, it did not lead them to a solution, rather than forcing them into a solution, which they did not opt for, yet it resolved their dispute.
When delivering mediation training, I always emphasise to trainee mediators it is not what you say, it is how you say it, it is not what you do, but how you do it.
How Do You Know If Your Mediator Mediated Correctly?
A mediator should portray active listening, they should listen more than they talk. They should ask relevant, short appropriate questions, at the relevant stage of the opening, exploration, bargaining, negotiation and closing stages of the mediation. They should display, and use excellent communication skills, tailoring their communication to the understanding of their recipient.
An example of this would be, to use language, words, the client understands, whether it be perfect English, and or slang. By so doing the mediator will build rapport, as quickly as possible and identify with them. Which in turn will help them to help the client resolve their difficulties as quickly as possible.
Further topics which will be discussed in further articles are as follows:
- The voluntary nature of mediation, but how is a court ordered mediation voluntary?
- Mediators cannot act as witnesses, but recently on two sperate occasions, mediators have been asked to provide evidence at court. But what about confidentiality?
- Which accreditation should a mediator hold?
- How much should you pay for mediation?
- Can an effective mediator mediate anything?
- The more expensive a mediator, the more experienced they are?
- Does a mediator need to be a member of the Civil Mediation Council?
- What is the difference between workplace mediation and employment mediation, surely they are the same thing?
- How up to date and robust is the EU Code of Conduct for mediators of 2004.
- Do solicitors make the best mediators?
- What to look for in a mediation company?
- If a mediator cannot give advice, can they state what you think is correct or incorrect?
- When should you not use mediation?
- Is it ever too late to use mediation, as there is to many damaged ground?
- Does a workplace mediator need to have an employment law, and or HR background?
- Who is the most famous mediator?
- Is mediation really cheaper than litigation?
For more mediation tips, contact Harvinder Singh Bhurji, who is a Fellow of the Civil Mediation Services Council Mr Bhurji has mediated in excess of 2000 disputes across all sectors, a UK Mediator with an international practice. He has mediated in India, Greece, Singapore, Dubai, Kenya, the USA and a number of other jurisdictions. Being the youngest ever commercial mediator to qualify he is classed as a leading authority in the mediation world, and a true expert in his field. In 2006 he set up the mediation company Effective Dispute Solutions. Which is a designated provider of mediation services to His Majesties Court & Tribunals Service.
