Mediation Success?

We in Core along with other advocates of mediation regularly commend the high success rate in mediation. Most providers around the world will report that approaching 80% of mediations produce a successful outcome. By that we mean that a final resolution has been achieved by the end of the process, usually over a day or perhaps two, and usually reflected in a written agreement.

In many ways, that is a remarkable achievement. Of course, many of those who participate in mediation do so because they wish to solve a problem, to achieve a result. However, they come to mediation because conventional means of resolving disputes have not worked or are stuck. These are usually very difficult matters. And yet they resolve. The process works.

But there is a danger if we focus on mediation only as a process which so frequently achieves a final resolution: namely, that we overlook that mediation is also an effective way to help parties to narrow issues, to really understand where others are coming from, to conduct a rigorous risk analysis with the help of an independent and skilled facilitator and to refine the scope of any outstanding issues which are unresolvable by negotiation.

in a recent mediation involving multi-million pound claims, parties were able to test and challenge each other’s position on complex and novel legal issues, address the viability of and commitment to continued litigation on key points, discover the strength of legal advice on each side and the range of settlement options, eliminate weak arguments and examine a variety of approaches to quantification, while retaining amicable and respectful relations throughout. Aspects of the matter may go on to court but with a greater understanding of the real issues and of the value of a court decision, while retaining the option of renewed negotiation at any stage.

This example shows that mediation, used creatively, offers a wider range of opportunities than we often contemplate.

Using Co-Mediators

In Core, we nearly always utilise the services of an assistant mediator (usually at no cost) to provide support for the mediator and to act as a second pair of eyes and ears in what is a demanding and absorbing role. The second mediator will be less experienced than the principal mediator and thus also a beneficiary of the learning bestowed by the mediation.

However, in some matters we offer the services of two principal mediators, specifically to add strength to the process. These will be difficult cases, perhaps with multiple parties, or several complex issues, or where particular expertise is useful allied to strong process management skills. In two recent mediations, we have seen this work well:

in a large value case concerning development and planning issues in a residential site, two mediators with different sector experience and skills worked closely together to enable both parties to be in the best possible position to do a commercial deal. Separate meetings with a variety of experts, often running in parallel, enabled momentum to be sustained throughout the two days.

in a matter involving European, English and Scots law, wide-ranging facts and very experienced solicitors and parties, and limited time, the two mediators were able to plan each stage strategically and often to work simultaneously with the parties in different rooms. Progress was faster and more sustained, often enabling lateral approaches to be adopted briskly and effectively.

Co-mediation is an example, therefore, of how parties who are considering mediation and selecting mediators can be sophisticated and benefit from departing, where appropriate, from the standard approach.

Constructive Communication

All good negotiation, whether in mediation or not, involves engaging the other parties in meaningful dialogue. Core has recently conducted several in house courses for senior executives on the theme of constructive communication.

Coming from these are common themes:

· how easy it is to make assumptions about people and events, to draw inferences from these – and for the assumptions and inferences to be incorrect;

· that there are two sides to most stories and that we need to be skilful in eliciting the real concerns, needs and issues of others who may see things differently, whose behaviour we may think abnormal and whom we may think are irrational;

· that we infrequently really listen to what someone else is saying and that we often miss the real gems in a conversation or dialogue;

· that to get our point across we tend to assert our position: how much more we can achieve by asking carefully formulated and focussed questions, drawing others out and helping them to see our point of view.

To paraphrase Cardinal Newman, “If we really understand what each other means, we will see that, for the most part, controversy is superfluous or hopeless”.

Mediation in Planning

The Planning Bill currently making its way through the Scottish Parliament proposes some significant changes to the planning system in Scotland. Prominent among these is the idea of community engagement. At a recent conference hosted by Holyrood Communications, John Sturrock outlined the potential which the processes and techniques of mediation can offer to various stages in planning.

Mediation can help to identify real interests; give parties an opportunity to be heard – and to hear; build working relationships among divergent interest groups; and help narrow and focus issues, while providing a mechanism for assessing options.

Click here to read Core’s submission to the Scottish Parliament’s Communities Committee.

Forthcoming Events

Modern Approaches to Drafting Dispute Resolution Clauses

Workshop - Friday 12 May 2006

9 am – 1 pm CPD 4 hours

Clauses in contracts providing for escalating approaches to resolution of disputes are now becoming common across a wide range of industries. But simply adding in an inappropriate clause can do more harm than good. Modern contract drafting demands bespoke dispute resolution provisions.

The workshop will bring benefits to those engaged in deal making, transactions of all kinds and litigation.

It will provide tips on drafting a range of clauses, including negotiation, mediation, expert determination and arbitration.

This half day workshop will be conducted by one of Core’s international panel of mediators and internationally recognised ADR specialist, Miryana Nesic, formerly of Hammonds in London. Click here for more information and click here to register online. Early Bird fee available.

Advising and Representing Clients in Mediation

Friday 9 June 2006 CPD 7 hours

Our one day course for legal advisers and others who wish to learn about the process and how to make best use of it for clients. Click here for more information and click here to register online. Early Bird fee available.

Mediation Skills Training

Tuesday 26 to Friday 29 September 2006 CPD 28 hours

Such has been the demand for our upcoming course in March that we are already taking bookings for our next course in September (with assessment stage from 8 to 10 November). Click here for more information and click here to register online. Early Bird fee available.

Mediation in the Media

The Scotsman Recruitment section featured a two page article on mediation in the Friday 3 March edition. Click here to read the full article.

To access Core’s news page, click here.

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