By Anthony Matthews, International Mediator, Colorado.
Around the world, disputing parties and their lawyers are realizing the value of dispute resolution achieved by dialogue and negotiation between the parties, rather than third-party adjudication by a judge or arbitrator. Mediation is a process in which such negotiations are aided by a trained, neutral facilitator. There is lately an increased interest in mediation around the globe.
Mediation has a variety of well-established benefits. Many people have difficulty communicating with each other and thereby resolving differences cooperatively, especially in a dispute situation. However, if they involve a mediator – a trained, neutral third party who intercedes between the parties and helps them communicate and negotiate – the probability of resolution is greatly increased – likely in a faster, less expensive, and more cooperative manner than the adjudication options noted above. So, mediation is a dispute resolution methodology that promises great benefits. Mediation can also be described as “assisted negotiation”.
Mediation has been around for a long time, and has been “known” within the various modern legal jurisdictions since at least 30 years now. Why is there a sudden surge of interest in mediation now? As it turns out, there are several reasons discussed herein, along with steps that should be taken to truly realize the promise of mediation as a primary dispute resolution method.
One reason is that mediation is usually faster and cheaper than the adjudicated alternatives. This is a simple fact. Second, mediation takes into account reality and sensibility – the beneficial emotional and social effects of coming to a cooperative resolution, which often outweigh the time, stress and financial burden of litigation. Third, and maybe most telling, many courts globally are now imposing mediation on the parties as a step in the litigation process. The implications of this are far-reaching.
Working things out cooperatively is faster, cheaper, and usually “fairer” than litigation and/or arbitration. One reason is that parties in dispute can try to work things out at any time, including the period before the specter of lawsuits or litigation. The timeline for self-determination in disputes is very flexible. For example, the disputants can try to work things out immediately when a problem is identified, then come back later after thinking things through and doing some research. At that time, they might work out a few details, and then finally home in on a complete resolution.
Negotiation or mediation can therefore be an extended process. It does not need to be a one-shot affair as is commonly seen during the litigation process. Sadly, even in legal jurisdictions where mediation is required as a “mandatory” step in the litigation process, mediation is often seen as a one-meeting-only affair, for which the participants are often not fully prepared. In fact, in many mediation sessions it falls to the mediator not only to “referee” the negotiation between the parties, but to assist and coach them along the way. While this is not a bad thing in and of itself, it does mean that the parties may miss out on some of the multiple opportunities open to them with a little forward preparation. This is a situation with which motivated lawyers could assist greatly.
Self-determination in dispute resolution is also preferable to an adjudicated approach, because the parties have some control over the terms with which the dispute is worked out. Cooperative resolution can include many factors outside of the purely contractual and financial – the desire to “get the problem over with”, the desire not to sustain an ongoing adversarial relationship with the other parties, the option of introducing many other factors into the negotiation to help “seal the deal”. The possibilities are usually endless, and those who choose to move directly to an adjudicated resolution process miss out on opportunities for lateral thinking and cooperative discussion of mutually beneficial options.
A very simple example: in a recent eviction case resolved by mediation, the tenant (who had not paid rent due to deficiencies in the property) agreed to accept the fact that the landlord would not return the security deposit. In return, the landlord promised to provide a favorable reference letter to the tenant to show to the next landlord. That letter was worth more to the tenant than the return of the deposit, so it was a mutually beneficial outcome, and importantly it was a solution not available in a courtroom, where the judge could only either order (or not) the return of the deposit, or some part thereof.
Many courts around the world are now ordering “mandatory” mediation before a case is heard by a judge (13 countries and many other local jurisdictions, at last count). A court asks the parties in a dispute to try and work it out on their own, using the mediation process. There is a general assumption that the parties, having filed a lawsuit, have already failed to resolve issues between themselves, and require a mediator. Interestingly, many cases do end up being resolved in mediation, even though the parties and their lawyers may not have considered that option before filing a lawsuit. This is true despite the frequent lack of preparation for a mediation session.
But the rise in “mandatory mediation” brings with it several challenges, and at the same time opportunities. To start with, there are no universally recognized standards for mediators. Anyone can call themselves a mediator. Most jurisdictions have local, generally accepted standards for being a mediator, notably that the mediator has taken a “40-hour course” (for which there are also no set standards). Some jurisdictions may also suggest an additional observation or co-mediation standard of or number of hours mediating, or number of cases mediated, or the requirement to have a minimum level of education such as a bachelor’s degree. Some jurisdictions still require mediators also to be practicing lawyers.
Therefore, those court systems requiring “mandatory mediation” are dependent on a cadre of mediators with indeterminate training and skills. This is one area that is ripe for improvement. For instance, the International Mediation Institute (IMI) certification could be used as a de facto standard. The certification incorporates all the elements that are generally required for local mediator certification around the globe.
To explain by giving a parallel example, the Project Management Institute (PMI) offers a Project Management Professional (PMP) certification which is recognized worldwide and is the global de facto certification for project managers. If you are a project manager anywhere in the world, you want to obtain the PMP certification. It requires study, some verifiable relevant experience, and references from other PMPs. Nothing similar of a globally recognized nature yet exists for mediators. IMI offers mediator certification which could be recognized in a similar manner, but IMI credentials are rarely understood or accepted at the local jurisdiction level. For example, if I apply to most US state judicial systems to be a mediator, any IMI credential I might have, would not be recognized. Conversely, seemingly every job posting for a project manager worldwide mentions “PMP Certification required/preferred”. In the mediation world, this is an area that is ripe for change.
Another challenge is that many lawyers are not trained or ready to represent clients in mediation. For a disputing party and their lawyer, successful mediation requires negotiation skills, which many lawyers simply do not have. Lawyers are trained in litigation – to make their case as best they can by mapping the circumstances onto written and case law, ready for presentation to an adjudicator. When those lawyers enter mediation, they are often not at all prepared with negotiation points and strategy, but are only ready to “make their case”, trying to persuade the mediator and the other party as to why their point of view should prevail.
Therefore, mandatory mediation will encourage the increase in the number of “negotiating lawyers” – those who are trained in negotiation and willing to participate in collaborative dispute resolution with a real commitment to resolving the case then and there. This is already being seen in the “collaborative law” model, where a lawyer will represent a client with the understanding that the case will not go to court, but that the lawyer will work to resolve the case by agreement between the parties. If the case goes to court, new lawyers are retained. This takes the incentive away from the lawyer to move the case to litigation which may be more lucrative for the lawyer. The collaborative model is taking hold strongly, very much in the family (divorce) arena and also in commercial cases. It is felt that “negotiating lawyers” can enjoy just as successful a career as litigating lawyers.
In summary, mediation is now “on the rise” in jurisdictions around the world. This will require a change in the way that mediators are trained and certified, and will also demand additional skills from lawyers worldwide. However, the potential benefits in time, cost, and human factors make these changes an exciting prospect.
About the Author:
Anthony Matthews is an International Mediator, Consulting Legal Negotiator, and Trainer based in Denver, Colorado. Educated in Engineering and Law at Cambridge University, he previously worked as a Global Program Manager for a large International Aerospace Company. He mediates regularly both privately and for the Local Court System as well as engages in training and consulting.
You can reach him at: Anthony.Matthews@adrmcr.com
Anthony’s website: http://www.adrmcr.com