Its Day 3 of Mediation Awareness Week and I’m looking at the importance, and significant benefits, of having an independent mediator.
Help from the outside.
Mediation is not a new idea, it has existed in some form or other for millennia. But throughout its various iterations, a central theme is that the person helping the parties to a dispute to solve their differences is not interested in the outcome. By that I don't mean they do not care, but they do not have something to gain or lose from a particular outcome.
Independence does not mean having nothing to do with the parties previously. Conversely, someone who knows the parties may be well placed to mediate, if more informally. That may be elders in a community, or a family friend.
I have found, when taking some of my cases to mediation, that a mediator with a different perspective can really help matters. Sometimes a mediator who is legally qualified will provide a level of understanding of the dispute which is helpful to resolving the conflict between the parties. In other cases, non-lawyers or other professionals provide valuable understanding and experience. But there is something even more fundamental; that the mediator is, and is seen to be, independent from the parties involved.
The perception problem.
Disputes are almost always between people, regardless of whether its personal, commercial, or corporate entities. Personality, history between the parties, culture and what's at stake all contribute to the reasons settlement hasn't occurred prior to a mediation. Disputes also tend to give rise to distrust by one party towards the other. So, the perception that a mediator is totally independent can be enormously helpful.
Because a mediator gets their fee regardless of the outcome, other than a general feeling of satisfaction if settlement can be reached, the independent mediator does not have a vested interest in a particular outcome. Any perception that the mediator is 'the other side's mediator' - will be unhelpful, even though the mediation process is voluntary and non-binding.
Knowing that the mediator is independent can prove very helpful. A mediation involves multiple private sessions, between the mediator and each party to a dispute. The mediator will often play Devil's advocate. Because they are independent, it is not because they are pushing you in one direction, it is usually because they want you to see something from another perspective. And you can bet they are doing something similar with the other party when they meet with them privately.
In summary, using a mediator who is independent helps to create a safe place and some neutral ground on which the parties can have positive discussion, whether directly, or indirectly with the mediator using shuttle diplomacy.
In tomorrow's instalment I will be focusing on Confidentiality, and how this contributes to mediation as an appealing way to resolve disputes.
Toby Walker is a Solicitor Advocate and heads up our Dispute Resolution team at Hedges Law. Toby brings to mediation a wealth of experience from his commercial practice. Utilising his indepth knowledge of the legal framework of most disputes, he endeavours to explore the practical needs of parties involved, listens carefully to what each seeks to achieve and works with that understanding to help them move towards a workable solution.