Tony Bingham told us more about the prejudices of some parts of the legal profession than about mediation in his recent article. Here's what mediators really do
As a mediator, I learned a lot from a recent article by Tony Bingham - mostly about how little understanding there is in parts of the judiciary and the legal profession about what mediation is (13 April, page 60).
In telling us about judges who want to be mediators, Tony has done an excellent job of summarising common misconceptions. There is, of course, no reason why judges cannot be mediators but, like anyone else, to do so they require training and to have the right aptitudes. Let's look at the misconceptions in the article:
Mediators do not wear jeans and Che Guevara T-shirts "when on duty". The parties' first impressions of a mediator are important. In those first few minutes a mediator has to gain the respect and trust of the parties and an important skill is to build relationships quickly with the parties so that they have confidence in the mediator. Most mediators rely on suits and ties to help them achieve this.
Mediators are not cajolers. They explain to parties that they are not judges, adjudicators or decision makers in any form; they are there to assist the parties to find their own solutions to their disputes. Mediators have no powers to force the parties to do anything and to attempt to do so would be a cardinal sin for a mediator.
Mediators do not warm the parties up with "leg-pulls and wise cracks". Humour can be a useful, gentle tool when dealing with impasses, emotions and entrenchment but the process does not start with a comedy act.
Mediators do not try to get the parties "to love them". A mediator will try to gain the parties' respect, trust and confidence but will also be required to say things that the parties may not want to hear, particularly when in private. Reality testing parties' positions and perceptions can be a tough process.
Tony got something right when he said that the mediator becomes a "confidant" but not when he said the mediator becomes "a pal, a mate". Mediators remain objective. They empathise rather than sympathise. Pals and mates are not the best people to help resolve differences because they are partisan and emotionally involved. Mediators are not.
Tony raises an interesting question when he asks how many judges can do all a mediator has to do and switch the next day to being a judge. Mediators are not judgmental. They do not decide who is right or wrong.
They do not decide the law or facts and then impose decisions on the parties. If a judge, adjudicator or arbitrator also acts as a mediator then they must definitely take off the judge's hat. Some are not able to do that and they will not make good mediators.
Tony says: "The exams are harder for judging." Mediators are not usually asked to pass exams. They are trained and assessed. The reality is that mediators only build a mediation practice if they are good at their job.
To be good at the job requires a special aptitude and many skills. Tony's Auntie Nell is right. Some judges can be "damn good mediators" but before attempting to mediate they should train and acquire the necessary knowledge and skills and be checked out to see that they have the right attitude and aptitude.
Whether this is by the Chartered Institute of Arbitrators or one of the other mediation organisations is irrelevant. What is important is that before judges fill their free time acting as mediators they should go through the process of becoming mediators, which involves rigorous training and on-the-job assessments.
If you are looking for a mediator be careful how you select one. Do not choose a blue-jeaned, revolutionary, affection-seeking comedian. Equally do not accept an untrained, unassessed and unproven judge, arbitrator, adjudicator or anyone else who thinks they know who should win and who should lose.
Two of the many advantages of mediation are that nobody cajoles you or imposes any outcome on you. You are in control.
Beware of the judge, adjudicator, arbitrator, lawyer, claims consultant or the like who says something like "I have been dealing with construction disputes for 20 years and I can tell who is right and wrong". That is not what makes an effective mediator.
John Price is the convenor of the Chartered Institute of Arbitrators' panel of mediators