Tuesday, March 13, 2012
Mediation has recently been in the news, with some heated correspondence in the Law Society Gazette, (one letter being contributed by me) and also further emphasis on mediation by the Government, particularly in work place disputes.
Those of us who follow the correspondence in the Law Society Gazette will see that there remains a residue of solicitors who clearly have very serious reservations about the concept of mediation. The specific case that sparked the correspondence was when a District Judge had told both parties to go away and mediate because the case was going to result in a settlement halfway between the positions of the two parties (i.e. pre-empting the result of the mediation).
There is a fairly common misconception that by going to mediation you are in effect accepting that there will be a settlement somewhere between the two positions.
In my experience, that is far from the truth. What is true is that, in the final stages, or the end game, of a mediation, when both parties have finally arrived at what they consider to be their “final position”, most mediators will see whether it is possible to bridge that last gap by in effect splitting the difference. That is not the same thing as taking the opening positions of both parties and finding a middle ground between the two.
This was most vividly demonstrated in a mediation I was in several years ago, where the claim was for several millions of pounds and the settlement was a few tens of thousands.
The Government is pushing hard at work place mediation in order to try and reduce the number of cases going to employment tribunals.\r\n
I have learned that a number of universities are undertaking training for members of their staff to act as mediators in relation to disputes between members of staff, but also disputes between students.
There has also been a recent directive once again for all Government departments to use mediation to resolve any dispute in which they are involved rather than go to litigation.
Whilst there will always be a need for litigation, not only to resolve matters where the parties have been unable to reach agreement, but also in order to establish important principles and points of law, it does seem as though mediation is slowly but surely being regarded as a first choice method of dispute resolution where there is a genuine dispute.
The one area that is troublesome for mediators is that more and more mediators are being trained and accredited, and the number of mediators is increasing at a faster rate than the number of mediations.
This links into a very active debate taking place through the Internet amongst the mediation community as to whether it is better for a mediator to also practice in their initial profession (for example as a lawyer) whilst being a mediator, or whether it is better to have a mediator who is a full time mediator and not doing anything else. I would say that I benefit from still being in practice as a solicitor, whilst carrying out 10 to 12 mediations a year, for a number of reasons.
Firstly, by remaining in practice, I stay in touch with what is happening on the ground in relation to disputes, litigation, changes in the law and so on. Secondly, as I am not mediating day in and day out every week, I believe I maintain a degree of freshness and enthusiasm that might otherwise be lost.
Thirdly, I am able to talk directly to the lay clients as a mediator, but also point out that I have substantial experience as a litigation solicitor, and can even draw upon recent cases that I have been involved in, both as mediator and as solicitor to illustrate points I wish to make.
If you require advice or assistance on the contents of this briefing please contact Alan Langleben on 020 7544 2424.
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