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.
In this model, mediation involves both direct contact between the parties with the mediator and separate meetings between each party and the mediator. Both sets of meetings are confidential and nothing that emerges during the mediation can be used in subsequent court proceedings if settlement is not reached.
During the private meetings the mediator explores the contents of the dispute from the standpoint of each party, probing to discover other interests and motivations and what they hope to obtain. The mediator can then take proposals from one party to the other with their permission, although he or she may choose to hold back on aspects of the offer if the mediator thinks to reveal it at this stage might damage the process.
In the course of the week, we all participated in nine simulated mediations, either as parties or as mediators. By the end of it, we suffered collectively from a variety of multiple personality disorder, having almost lost track of who we were.
It was revealing to see how the participants entered into the spirit of the role-playing.
An affable and pleasant solicitor with whom I was enjoying a coffee break turned into a truculent and confrontational finance director of a major football team in the blink of an eye.
I found myself seguing from the character of an aggressive and abrasive managing director of a computer manufacturing firm to being the rather self-righteous director of a church-based charity for deprived children.
The most challenging task was the mediating, as we attempted to keep the process on track and lead the parties towards recognising that the best outcome was a settlement, which might involve previously unsuspected benefits.
While this was the skill we were there to learn, it was obvious that the other roles we all had to play were contributing to our capacity for empathy.
The lawyers present learned that mediation was more about interests than rights. We all learned that the matters in dispute rarely formed the full picture either of the relationship between the parties or what had brought them to this point. We learned also to allow people give vent to their emotions, as this could give insight into what some of the real issues were.
To those who are still sceptical – even when the legislation is passed – mediation will still be voluntary, even if a legislative stick may exist to encourage people to consider it.