Mediating through rights and interests
It will never be possible for the public or press to attend a mediation, but I recently participated in a week-long mediation training session and found it illuminating and challenging, writes CAROL COULTER
THE SCHEME of a Mediation Bill was published by the Minister for Justice last March. This has now gone to the Oireachtas Committee for Justice Defence and Equality and could become law by the end of the year. It will provide a legal framework for mediated settlements to provide enforceable solutions to civil disputes, ranging from family law to large-scale commercial disputes.
So what can people expect if they opt for mediation? Of its nature, mediation is a confidential process, unlike the courts, which are constitutionally required to hear cases in public except in such exceptional circumstances as are provided for by law. Therefore no one knows, or can know, what goes on in mediations.
Parties and lawyers alike are likely to be suspicious and apprehensive. Will the parties’ rights be observed? Will the mediator just split the area of difference down the middle? Who will protect the rights of the weaker party? Will it involve a lot of emotional stuff that has no place in negotiating a binding settlement of a dispute? Will parties find themselves bound by settlements they are unhappy with?
It will never be possible for the public or the press to attend a mediation, but I recently had the opportunity to participate in a week- long mediation training session organised by the UK-based Centre for Effective Dispute Resolution (CEDR), which involves simulated mediations and intensive training in mediation skills.
The course began with an outline of the qualities and skills required of a successful mediator, along with a series of exercises to demonstrate them. These included the ability to listen to non-verbal as well as verbal messages and notice unspoken issues and concerns.
We were shown how to ask questions that would open out the parties’ positions beyond their stated aims, to reveal the tangle of interests they held going into the dispute.
These could include the need to maintain a commercial relationship with the other party into the future or, in the case of a family dispute, the need to maintain a workable relationship for the benefit of children and other family members.
It involved expanding the “pot” of measures that could make up the final settlement, including things that were not sought at the outset; for example, an apology for a perceived slight.
We were also shown how to challenge unrealistic demands and manage expectations, so that the parties could come to a solution they could live with, even if it was less that their stated position at the outset. In the process, they learned they were in control of the outcome, unlike in a court case, and they could walk away from it at any time.