Mediation – an increasingly common means of dispute resolution
What is Mediation?
In the UK and Europe facilitative mediation, is increasingly used as a means of alternative dispute resolution which can reduce litigation and court time and costs. Courts and other interested parties are aware that in many cases, they are expected to have considered mediation as a means of resolving disputes prior to court proceedings. It is likely that attempts at mediation or other forms of dispute resolution may be compulsory for certain types of dispute in the near future. The Civil Mediation Council – a charitable body – (www.civilmediation.org) provides guidance on standards and process. Mediators are expected to follow a Code of Practice such as the European Code of Practice (ec.europa.eu ). The Civil Mediation Council registers providers of mediation services.
Mediation is a process structured by a trained mediator to assist those in dispute reach a mutually agreed settlement or resolution. Prior to a mediation, a mediation agreement is signed by those in dispute and the mediator. The mediation agreement is the bedrock on which the mediation is built. Without a mediation agreement, no mediation can take place. The mediation agreement contains a number of sections which identify the names of the mediator and participants; the role of the mediator, the mediation dates, the venue and the method to be followed. It contains conditions which confirm that the mediator is not to be called as a party or witness, or be sued (saved in exceptional circumstances such as a court order). It states the rules about confidentiality and privilege and explains how all documents including electronic and written (with the exception of the mediation agreement itself which will be retained as a record of the meeting) will be destroyed or deleted at the end of the mediation; it specifies the start date, time of the mediation; it explains the ways by which a mediation may be terminated (including at the discretion of the mediator who will not be required to provide an explanation for the termination); it explains fees and payment (including costs of cancellation or postponement) and it describes the jurisdiction under which the agreement is applicable. This document is signed by all participants, and a final Mediation Attendance – Confidentality Agreement is signed by all those in attendance, agreeing to be bound by the terms of the agreement. A mediator must be insured to undertake mediations.
The mediation must not proceed without this agreement being signed as it provides a clear and unambiguous safe framework for the mediator and the participants to proceed with the mediation. Without it, the mediation cannot proceed.
In a mediation, the mediator does not take the role of a judge, or lawyer or arbitrator and makes no assessment of the two sides of the dispute or any recommendations for resolution. During the mediation opening checklist all participants will have confirmed that they have signed and understood the mediation agreement. The mediator will have then confirmed his/her role by making the following or an equivalent statement – ‘I will provide a neutral and balanced opportunity to settle: I will listen and help. I will not, however, advise you on the law or stop you doing a deal that may be unwise’. The mediator has no role in determining facts or providing advice. The relevant facts and advice are provided by the participants. The mediator does not give any opinion as to the outcome of the case, or predict what a court would do in the case. The mediator is in charge of the process, utilising skills such as reality testing, probing questions and objective criteria to, to assist the participants, but the participants are in charge of the outcome.
The role of a mediator working within a facilitative framework is not to impose their own opinions on participants in order to try and reach a settlement, and they should not try to persuade any or either participant to do so. The settlement must be determined by the participants, a process which the mediator will have facilitated, by using key skills and encouraging and assisting the participants to create their own solutions. These skills will be utilised in framework that includes rules, intelligent listening and questioning.
A mediator working within a facilitative framework must not impose any influence of any form (be it, for example, suggestion, instruction, advice, opinion) on any or either participant as this conflicts with the mediator’s role which must be neutral and balanced. Irrespective of whether a mediator believes a settlement to be fair, or even if he/she considers to be unwise, the settlement decision must be developed and therefore owned by, the participants themselves. It will be part of the mediator’s agreement with the participants that even if the parties are unable to reach a settlement during the mediation, the mediator shall not make any recommendation on possible processes or terms of settlement.
It is not the facilitative mediator’s role to suggest options for settlement, as the settlement must be one that is determined by the participants themselves. The mediator may seek to get the participants to reflect on and explore their concerns and what they wish to achieve. This may be done in both open and private session, by perhaps encouraging participants to review the range of options available to them, and the consequences and implications of those options.
Private sessions , whereby the mediator mediates with one of the participants (with the agreement of the other participants and having given the other participants the opportunity for similar private session if wanted) allows the participant in provide session to express views or provide information that they may have (for a variety of reasons) not wanted to disclose in open session. At the beginning of the mediation, in open session, when the ground rules are agreed by all parties, agreement will have been made that information provided to the mediator in private session is confidential to the participant and the mediator unless the participant gives consent to disclosure. The mediator may consider there is some value in disclosure in achieving a mediation and may invite the participant to consider or reflect on whether it may be helpful for the information to be disclosed. This may alter the participant’s views, but if consent is not given for release of information provided in a private session then that information must remain confidential to the mediator and that participant.
There are a number of ‘golden rules’ for a mediator which embrace a number of qualities and skills which, if utilised will allow the best possible chance of success in the mediation process. These may be summarised as: listen; don’t make matters worse; you are not the judge; you are not a legal adviser; know what you [as the mediator] can say; allow one person to speak at a time; ensure respect for all participants, with no personal abuse.
Expanding further, curiosity as to ‘what is going on here’ using the questions, what , where, when, how, why and who, and listening will provide the essential elements of mediation. More specifically, apart from following the basic administrative, procedural and ethical elements of mediation, mediators must be able to be able to actively listen (for example to be aware of not only what people are saying, but why they are saying it, and whether there are additional messages to be taken away); to be able to be comfortable with silence within a mediation and understand how to use it to the advantage of the mediation; to be able to use language that is neutral, favouring neither one participant nor the other, and yet which does not allow the mediator’s opinion or view to be perceived or advances; to be able to build trust and rapport with each participant group; to encourage interaction between participants; to manage the relationships between the participants themselves, and the mediator; to use language appropriate to the setting; and to be able to utilise at the appropriate times open, closed and probing questions. These concepts embrace the’ golden rules’ that will ensure that the enquiring mediator will be able to identify ‘what is going on here’ and thus be in a position to create a basis of mutual trust that best assist the participants in achieving a resolution to their dispute.
There are a number of situations whereby the mediator may need to make the determination that the mediation be terminated. A mediation may be terminated either on a settlement being reached, or on the participants agreeing to end the mediation, or on the time limit being reached and no overtime being agreed by the parties. The mediation agreement specifically makes provision for the mediator to be able to take this course of action, without giving any explanation for it. A termination may be required if mediation has failed and that the participants are not going to be able to achieve a settlement. A mediation must be terminated in four other settings. Firstly, if the mediator becomes aware that he/she is sure that a fraud is being advanced through the mediation process (eg money laundering). Secondly when the mediator’s ethical or professional position may be compromised (eg a participant makes inappropriate sexual advances to the mediator). Thirdly, when it is clearly unethical to continue. Fourthly when there has been a threat of violence made. In the latter scenario, consideration should also be given to the need to make contact with appropriate authorities, such as the police.
If a settlement is reached (as it is in the vast majority of cases) then the settlement agreement must be recorded in writing in agreed terms by the participants themselves. The mediator plays no part in the writing or signing of the document. The settlement agreement must be signed by all participants, and must state the agreed outcome of the mediation. Where legal documents may require to be drawn up as a result of the settlement agreement at a later date, this should be made clear within the settlement agreement itself. The settlement agreement may take such written form as the participants agree, determine and wish, including potentially but not limited to, a draft order, contract, undertaking or other document.
In addition the parties may if they wish otherwise conclude heads of agreement, or a minute of matters agreed without making the same binding settlement agreement, or they may reach any other form of non-binding resolution. Any offer made in mediation which is intended to survive the mediation should be in writing.
Mediation will be increasingly used in coming years and in many respects providing mediators to disputes has similarities to the provision of expert witnesses to courts and other bodies. FHC’s wide experience with the identifying and providing experts to assorted clients and managing the case as it progresses, with the provision of invoicing services is directly transferable to the provision of mediators. FHC can now provide mediators and mediation services, including managing cases and is creating a sector-based panel of trained mediators with specific skills applicable to a variety of civil and commercial mediation settings. Plans are also underway to develop CPD training and collaborate with training bodies to provide training in mediation.
By Jason Payne-James