Mediation Not For the Uninitiated
The problem with mediation is that it can be so easy to get it wrong. Inexperience and lack of preparation by some or all of the parties can lead to disaster and mean the dispute is unresolved and relations are worse than before the mediation took place.
Let’s take a look at a worst case scenario example here of an employment dispute.
Meet the Company: PACK Packaging is a leader in the cardboard box industry. They have contracts to supply packaging all over the world. During the last 12 months however sales have dropped dramatically. Although there has been a bit of a change in the industry with environmental pressures they believe that their poor sales performance is down to the sales director who they say has failed to perform his duties as stated in his contract. Having threatened him with immediate dismissal their lawyers have advised they may not be acting entirely legally and have suggested mediation could be a good way to settle the dispute quickly and at limited cost.
Meet the Lawyer: Despite being a successful employment solicitor Susan has no mediation experience. She has lots of experience of taking cases to Employment Tribunal but has heard that mediation can be useful in cases like this. Although she has successfully negotiated settlements in many tribunal cases she hasn’t ever had any negotiation skills training, she doesn’t think this or mediation training is necessary, believing her legal skills will carry her through. Of course this ignores the fact that the process of mediation is fundamentally different to the tribunal process and the skills and techniques required are different too.
Not being familiar with the mediation process she also fails to prepare adequately. She did not think carefully in the selection of the mediator and she has no idea what her walk away point will be if the case does not settle.
Part way through the mediation she realises the mediator is out of his depth and she does not have the knowledge to enable the parties to move to a settlement.
She prepares for the mediation like an Employment Tribunal case and is frankly aggressive to the employee. The result is that just after mediation has started he is so upset that that he’s on the point of walking out of the mediation. The matter is compounded by the fact that, despite her experience, she does not know what is the most effective offer to put forward and puts forward an insulting offer. In pique over Susan’s offer and aggressive manner, the other side walks out.
Meet The Employee: Graham is the Sales Director of the company. He believes he’s worked hard for PACK Packaging and that the dip in sales is down to changes in the market not his own performance. He does however realise that the relationship has broken down with his employer and he can’t continue working there. He just wants a decent payoff which recognises his past contribution and doesn’t want to lose face by being dismissed.
He attends the mediation without a lawyer. He’s used to negotiating deals and doesn’t feel he needs any help. But he’s never been in a mediation situation before and hasn’t prepared and without the guidance of an experienced solicitor he is really exposed. When the mediation starts he is incredulous at how aggressive the other side is and the format of the mediation has left him totally mystified.
He has not prepared for the opening session where all the other parties speak and when the other lawyer talks he feels that he will have no chance in successfully resolving the case. He feels totally out-gunned in the fact that the other side have a lawyer and he is stuck on his own. Now he does not know whether to make an offer to settle the case or just to walk out because he cannot believe he’ll get a good deal.
Graham also feels the mediator is not independent and it’s obvious he doesn’t have any experience of conducting a mediation. He feels the company are just not taking things seriously and he might as well just walk out and pursue the tribunal route to get this thing settled.
Meet the Mediator: David is a non-executive director of the company who has not been involved in the dispute and is therefore considered a suitable party to conduct the mediation. He’s intelligent and level headed but…
The problem with David is that he has no mediation qualification nor does he have any experience of the mediation process for successfully solving disputes. The result is that when the disputing parties arrive at the mediation, David does not have the knowledge of the protocol of mediation to set the scene correctly or inspire confidence. Although he asks each party to state their case and listens to what each has to say he has no idea how to effectively move the parties from expression of their position towards a mutually agreed settlement.
As he’s never been in a mediation before, let alone conducted one himself, he allows the lawyer to have a much greater role than is necessary and fails to manage her aggressive approach.
When the disputing parties start putting financial offers to settle the case which are far apart, David lacks the experience to help bridge the gap and the parties decide to walk out of the mediation as they have no confidence that the case will settle. With experience and the necessary skills David would have enabled the parties to see that this was an opening gambit and that the next stage would be to keep talking to work towards a settlement, using some of the skills and techniques mentioned below.
The essential skills and techniques of the mediator include:
- Active listening – to what’s said and what’s left unsaid
- Empathy – developing the ability to see all sides of the argument and remain neutral at all times
- Questioning and challenging – some the traditional questioning and challenging techniques used in the court room are completely inappropriate in the mediation room
- Summarising – although often seen as simple this is a crucial aspect of the mediation process. It is essential to summarise to check understanding, draw out the key issues, allow for amendments to what’s already been said and give order to the jumble of facts and opinions that may have been presented
- Reframing – this technique of restating information, taking out the emotion in many cases, is invaluable in taking the heat out of a conversation and turning negative comments into more useful positive statements. For example when a party states “I’m not willing to settle for anything less than £50,000” the mediator might reframe by saying “I see money is important to you in any settlement”. This takes the emphasis away from the amount and allows more room for manoeuvre than if the amount had been focused on
- Using ‘why’ – it’s not uncommon for parties to enter a negotiation with a very fixed view of what they want. Simply asking why they want that result can disturb their thought process sufficiently to create room for helpful movement of their position in the mediation process
No Experience Tends to Mean No Settlement
You can avoid this worst case scenario by using an experienced mediator, one accredited to an organisation like the Academy of Experts. For guidance on selecting a mediator visit the Human Law Mediation website. Companies should check that their lawyer is familiar with mediation and has the right skills and training to support them in a mediation situation and lawyers should prepare for the mediation, including briefing their client on what to expect.
To discuss your mediation requirements, whether you are a company, individual or solicitor call Justin Patten of Human Law Mediation on 0844 800 3249.
Changing the Way Industrial Tribunals Work
Published in Personnel Today, April 2007
Mediation for Employment Lawyers
Training course presented by Justin Patten on behalf of MBL Seminars
Lawyers Tips: Preparing for a Mediation
From the Human Law Mediation website
Making Mediation Work
Half-day training session designed to equip lawyers with the knowledge they need to get the best results from mediation.