Regulation of Mediators
The Regulation of Mediators and Other Issues
(arising from the Civil Mediation Council Third Annual Conference)
“Mediation is growing” a statement with much promise, we have all heard on numerous occasions. Despite the growing numbers of mediators few can support themselves solely through mediation. It is no longer an unknown quantity, as it was a decade ago, I rarely need to give a first stage explanation of what to expect as most representatives have had experience of it.
WORKPLACE MEDIATION
The Civil Mediation Council Conference was well attended with a particular focus on Workplace Mediation made topical by its place in the Employment Act 2008. Funds are available for working proactively on the resolution of workplace disputes before they crystallise. This type of mediation requires different techniques to the standard commercial format of the Plenary/Caucus route. The parties will go back to the same office with the same status although the process will, hopefully, have helped to identify changes in behaviour that will dissipate workplace tensions.
Assisting in the settlement of such matters often benefits from a visit to the office and discussions with other parties working there. It is one area where speaking to one party can have a marked effect and may obviate the need for mediation. Company policy and the failure to appreciate the affect one is having on others is more often an issue in workplace situations than “commercial” conflicts. Miscommunication however is a common strand in both. Community Mediation possibly shares more with this type than civil disputes. Many of us attending the conference have not been trained in these aspects
A MEDIATION SERVICE
Mediation is a service provided by professionals for gain (one can dream) for the general public and the process should comply with generally accepted principles being:
open and accountable
undertaken by mediators trained to acceptable standards
providing a recognised accessible complaints procedure
The spokesperson from Consumer Focus (Ms. Bello) bravely opened herself up to a barrage of comments, the majority of which were highly negative. They highlighted (a) the difficulties of keeping confidentiality in any post-event review (b) the small number of complaints and (c) avoiding over-regulation as has occurred in adjudication, arbitration and other attempts at ADR (Alternative Dispute Resolution).
I have heard these points made before but have never seen a cogent analysis, to provide a clear way forward, which is my aim in this article. Various speakers at the CMC review addressed the issue comparing mediators to doctors. Looking at the medical field, a common complaint about Dr.’s used to be that they failed to prescribe the pills that a patient thought they needed i.e. antibiotics for a cold but now through education fewer people are making such unreasonable demands. Doctor/patient confidentiality has never been a bar to challenging the actions or results of doctors. We surely cannot balk from the necessity to allow informed choice if we wish the field of mediation to grow.
Confidentiality in mediation works on two levels. What is said at the mediation cannot be disclosed by either party after the mediation, unless the parties agree to such disclosure in writing, nor can the mediator be called as a witness in future proceedings. Further, what is said in the privacy of a party’s room when in “caucus” with the mediator can also not be used outside of that room without the consent of the party concerned. In any review of a mediation process for the purposes of determining complaints, there is no reason why the process cannot be reviewed by qualified mediators bound by the same principles of confidentiality as the original mediator, provided neither party to the mediation becomes privy to information they would not otherwise have had.
Technological advances mean that it would be easy to keep a digital record of proceedings for a limited period as a fall-back if complaints arose. These should be tamper-proof and kept in secure data-storage by a regulatory authority or provider ensuring they remain an accurate record. However, complaints involving supposition regarding discussions in caucus with another party should be reviewed independently as should allegations of duress. This would keep the process independent and preserve confidentiality.
Again at the conference, examples of complaints were cited such as stringing the process out to earn more money, the mediator being unfriendly and the whole process not being what was expected. Success in mediation has often been ascribed to the management of expectations and as a practitioner with experience in time-limited mediations, it is the pre-mediation explanations that allow negotiations to be maximised in the time available.
Professor Hazel Genn, not yet a convert to mediation, highlighted various aspects that need to be considered, evaluated and where appropriate remedied. These included:-
the process should be voluntary without being foisted as an unwarranted extra step in the cost of litigation (this had been highlighted by Igor Judge LCJ in his earlier talk).
the expectations of parties need to be managed – at all stages they should be reminded that their mediator is not taking ownership of the dispute, that save in specific circumstances, i.e. expert determination or early neutral evaluation, no decision will be imposed. Further, a mediator will not advise on the law but may, to like effect, challenge a party’s perceptions. Her research suggested that the perception of the success of mediation was affected by the following:
- advice should be given at the preparation stage as court-suitable skeleton arguments are not appropriate for a mediation and may be a negative influence where time is limited
- advice on and encouragement in full participation ensuring that the views of all parties are considered where relevant
- respect for the mediator who should show knowledge of the subject matter and be skilled in his role
- the willingness of the other side to settle
- achieving settlement
- fairness – a mediator should not browbeat a weaker party in to submission and where one side is represented and the other isn’t the mediator should help to create a level playing field
Surely it is common sense for a mediator to speak to the parties beforehand explaining what will happen at the mediation either in detail or reminding returnees to mediation of the principles and form for the mediation. The usual format is a plenary session followed by caucuses with the mediator often spending long periods with one or other party, qualified by mediators reaffirming their impartiality and their role to assist the parties focusing their attention towards a resolution of their dispute. A mediator should also stress that save in prescribed circumstances a mediator will not give any legal advice or make judgements as to the rights or wrongs of any case. The parties must however be prepared for the “reality testing”, standing in another’s shoes, assessing the true costs both the percentage which can be reclaimed and those which cannot be reclaimed together with other methods learnt in training.
Unfortunately, to assess complaints one needs to have principles that all mediators should uphold together with minimum standards of competence. The threshold for accreditation as a mediator is not high compared to the qualification requirements of other professions. Life experience, the ability to communicate, empathise, mirror or generally encourage people to be at their ease with the mediator and the process are not things that are easily taught. The Rottweiler approach of a good litigator is not ideally suited to mediation although banging heads together can in some instances bring about the desired result (so I hear!)
It is only relatively recently that I have been able to find Professional Indemnity insurance as a mediator at a reasonable level. PI insurers had not previously recognised that as a risk category mediators are low. The insurance that I have found groups mediators with masseurs, NLP counsellors and life coaches rather than lawyers or other professionals. This does show a recognition, at least by some, that a good mediator tries to ensure that ownership of the dispute remains with the parties but will try and help them put it into perspective and differentiate their wishes or desires from their needs.
If a party is being unrealistic (in the mediator’s opinion) it is the mediator’s job to challenge their perceptions and try and get them to see the case from the other parties’ points of view. Some personalities clash and it would be unfortunate to have a mediator that one or other party bridled at. This will be less likely to occur if the mediator has made contact with the parties in advance and explained to them exactly what can and cannot be expected from him/her. Further, a part of a mediator’s skill should be making people feel comfortable, getting their confidence and allowing them the opportunity to vent, feel what the dispute is doing to them and in some instances have the opportunity to grieve for what has been a constant if thorny companion. It is allowing these processes that often help parties find a mutually satisfactory solution.
A mediator is part negotiator, part confessor, part conscience part mirror. What is there to regulate. There are clearly certain principles that all should ascribe to:
keeping confidentiality
- acting in good faith
- remaining impartial
- not pressurising parties to reach agreement
- acting in accordance with the parties wishes
- helping equalise the relative strengths of parties
The process, being voluntary, allows the parties to leave at any time or to decide that the mediation has reached a stage where no more progress is likely to be made. The mediator can not force the parties to do otherwise nor would one be acting properly if one attempted to do so.
Personally, I enjoy mediating and get a sense of satisfaction like no other when a case settles. However, we all talk about collaboration rather than competition, principled negotiation and other buzz words showing what good modern non-competitive people we can be. Unfortunately, in looking at the development of mediation, provider groups tend to look inwardly each taking a tiny slice of pie rather than recognising, if we all work together, there is plenty of pie to share.
The Chinese curse “may you live in interesting times” was developed by Lord Judge to reflect a problem we have all faced “may you be involved in litigation where you are in the right”. Parties fighting as a matter of Principle can be stubborn preferring to let someone else to make the decision. If we are to do any good, we need to bring perspective to issues and foster viewpoints that encourage “no fault” solutions.
Simon S Aronsohn MA Cantab
(CMC, CEDR, ADR and INTERRESOLVE accredited)