The Uses of Mediation

Man has mediated I imagine since the beginning. I guess even Neanderthals tried to find a solution to how they divided up the hunting spoils or who lived in which cave before resorting to combat. The stakes are just too high when we fight not to seek a more peaceful solution. Today we have neighbourhood mediation, mediation through religious bodies and, on an international scale, those brave souls who attempt to mediate conflict between nations.

In this country, when there is a legal dimension, most people either think of family mediation or what most people describe as “commercial”. I’ve been involved in a commercial mediation where they needed input about what the amount of a matrimonial settlement should have been- always tricky given the discretionary nature of decision making. It is a very different process from mine involving as it does the clients being in separate rooms with their legal team and the mediator going backwards and forwards between the two sides.

One thing’s for sure, it’s an expensive day out for the clients. There’s not only a mediator to pay but also a solicitor and in all probability a barrister. Add to that that the mediation often happens a long way along the road to court.

However who ever said that only divorcing or separated couples could use the family mediation model which involves the clients and the mediator in a room together in a series of sessions with time between to take stock and legal advice? Well, actually nobody. One of the beauties of mediation is its flexibility. You can do anything with it as long as you maintain the basic principles. A particular process is just one way of going about mediation. The important element, apart from the willingness of the clients to engage, is the skills which the mediator brings to that process.

The mediator has to maintain the momentum of negotiations, input legal, financial and practical information and be able to help clients stay as much as possible on a path which may lead them to resolution. That path usually isn’t straight. There are often detours. The trick is to know when the detours are an essential part of the process and being able to manage them.  What a mediator working in the family model has to have is the ability to help people steer a course whilst dealing with a lot of emotional and personal baggage all the while trying to avoid them ending up at a dead end. What that mediator needs is to be able to allow clients to address issues which aren’t remotely practical or legal. If those aren’t addressed, it’s often impossible for clients to focus at all on problem solving.

Such personal/emotional issues don’t just exist when a couple splits up. They are often there when business partners or shareholders fall out. They are usually there when attorneys can’t agree or when issues arise over the administration of an estate. These aren’t disputes between people whose only connection is a contract and how it should be performed. The people at odds are, or have been, closely involved. They may be family members where the fall out can draw in a whole cast of others and may have repercussions for years to come.

The more I think about it and speak to lawyers dealing with such issues, the more convinced I am that the model of mediation which I use affords a real possibility of addressing not only the legal problems but also the inter personal issues which so often make achieving a consensual legal solution well nigh impossible.


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