When did mediation get taken over by tree-huggers who refuse to discuss the merits of the case? Well, no more. If it stops daft cases ending up in court, then mediators should be free to take a more aggressive approach
Blow me down; there are some passionate feelings out there beating in the breasts of mediators about mediation. Colin Wall, president of the Chartered Institute of Arbitrators, doyen of mediators in Hong Kong, got to it in his excellent lecture the other day. He is a “facilitative mediator”; he takes his barge pole to the “evaluative mediator”.
The tide has come in for mediation in the UK. Folk keep telling me that the courts now make mediation obligatory; that’s incorrect – they don’t. Never mind, it is here and in use. What always happens with any young “thing” is a debate about what it is and how to do it. Then someone will want to make up rules, “institutionalise” it, then someone will want to make disciplinary rules to punish those who don’t comply with some institute’s rules. So here we are in the UK with a tug of war about mediation. There is a contest – several, in fact. One of them is facilitative mediators vs evaluative mediators.
Look, a mediator is a person volunteered into place by the disputants to help them with the dispute; that’s all. Unlike an adjudicator, arbitrator, judge, this mediator person makes no imposed or binding decision. It’s different. It’s just simply a third-party invitee. When the UK started training these “invited helpers”, the model taught was imported from the USA.
In short, it was to assist the parties in finding and analysing options for resolution. The invitee was not there to make recommendations, nor give advice, nor an opinion on the dispute, much less say or predict what a court would do in the case. This mediator “thingy” was in charge of the process while the parties were in charge of the outcome. Sounds good, doesn’t it?
But the UK construction industry gave it the elbow. Try as we might, it didn’t catch on. It did do better in areas such as family law and divorce settlements, also personal injury. In construction we went for adjudication since it decides contractual rights, and it works.
But mediation still figures in construction, especially if the dispute goes onwards and upwards from adjudication.
I challenge, I probe, I test. I think that’s what often works and I don’t give a damn that other mediators do it differently
It so happened that, some years ago, yours truly began to accept requests to be the mediator. I had done some training, mugged up on the bumf and watched others. Then in my first appointment I gathered X and Y together, let them each have their say then went into what we call “a caucus” first with X alone. Blow me down, within half an hour, X’s team was asking me what I thought, and was this a good or bad argument, point, fact, evidence and/or legal principle? Oh dear …
I stumbled around; I was not supposed to give an opinion. I was only here to facilitate a settlement. Damn it, I would be thrown out of mediator appointing heaven if I went this way. I ducked it. Fed up, I refused any more appointments. But I crept back, took another appointment. Same thing happened: “What do you think?” said party A in caucus. This time I damn well told them. Of course I didn’t tell party B what I told party A. Instead I told party B privately what I thought of their own case. Or rather I “re-evaluated” afresh what they said about their case. It worked well.
Since then, when asked by one party what I think of their position, I tell them. But what I don’t do is get both parties together and make some form of announcement about the values of their case. Giving an opinion in private to X and Y separately really does push things towards a settlement.
Now then, some people call this approach “evaluative mediation”. I don’t – I call it re-evaluative mediation. I tease X to show me the strengths of his position and I challenge, I probe, I test. I think that’s what often works and I don’t give a damn that other mediators do it differently. I have never found one mediation the same as the next. Save that they are all exhausting and exciting.
The so-called tug of war about mediation has led the so-called facilitative mediators to label the “other lot”: “muscle mediators”, “Rambo mediators”, “Attila mediators” or mediators who will knock some sense into X and Y by banging heads together or twisting arms. So called us evaluative mediators label the other lot as “tree-huggers”, “touchy-feely”, “potted plant” mediators. But when I talk to the facilitative camp, I ask if they probe X’s case in private and so too Y’s case and they all (in my skinny survey) say they do. True, the style of probing may differ, but mediation in the UK works ever so much better now than it once did. A mediator who probes, questions, challenges is evaluating or causing the customers to re-evaluate. If that’s what is meant by a “facilitative mediator”, I is one.
Tony Bingham is a barrister and arbitrator