The surest route to mediation

The surest route to mediation

The high costs of litigation and protracted aggressive negotiation mean that mediation in company and personal matters is becoming increasingly relevant. Initially disliked by probably both or all parties – each of whIch is convinced of the justice of its case – it becomes appealing when the cost of a court settlement is clear. The adversarial nature of our society today is a heavy cost on pockets and emotions. Any successful effort to avoid it is worthwhile.

Meditation can play a part when there is a sense of betrayal or perceived injustice in any situation. That this perception may arise from false information doesn’t change the depth of feeling that can be experienced nor the frustration that may be felt. The heavier the process the greater the damage done. Most disputes arise because of unwarranted expectations. Once entrenched they are difficult to dislodge. No amount of reason compensates for misunderstanding.

Disadvantaged parties seldom see fairness in judicial pronouncements. In mediation, if you are not careful, all involved will feel aggrieved. Mediation is not a simple matter of drawing a line halfway between warring parties. That is why it is important to have good Mediators. They are people who are wise, unprejudiced and uncompromisingly fair. Their record will be a practical one rather than judicial nuances. They may not speak colloquial Latin but they talk common sense.

Most disputes appear to be about money. This is misleading. They are in fact about personal pride and perceived role in the world. The process of mediation is one of persuading the disputing parties to declare their objectives, their reasons for them and their prejudices, in as calm a manner as possible. Feelings run high where face, money, injury and status are concerned. Our search for self-recognition doesn’t allow for detraction from our character or ability.

For these reasons we see Wisdom as a prerequisite for a Mediator. The training afforded a top class Mentor requires Wisdom as its main attribute, too. The ability to get to the heart of the matter, to cut through the peripheral haze of emotions and to get a clear but agreeable conclusion is something that any Mentor / Coach is doing all the time. Relations between bosses and subordinates, between directors and shareholders, between acquirer and acquired in mergers and acquisitions, these are all daily issues that Mentors and Coaches tackle.

We have found applying the concept of ‘most reasonable’ is the best way to mediate.

It is no quick fix because it requires both (or all) parties to a dispute to define their positions extremely clearly. There are two differences from a proper legal briefing. While they may have supporting evidence, they will not be producing a legal brief. The objective is an answer, not proving who is right. Their submissions will therefore be limited to around 1,500 words. They may produce and use these words as they see fit – verbally or written. This makes it fairer for the less articulate and helps remove bias from the silver-tongued. Whichever way, they must remember that it is only their reasonable solution that will cause the Mediator to find in their favour.

Mediation works when both parties commit to be bound by the outcome. If there are escape clauses they will lead to a questioning of the mediation results, to protracted further argument and eventually to court, anyway. Such behaviour is more damaging than as if there had been no mediation in the first place. For this reason we encourage each party to a mediation to have a preliminary informal chat with the Mediator before a more formal, but still non-judicial, mediation meeting is held. At the Mediator’s discretion a subsequent meeting might also be held.

There won’t be a third meeting. If the mediation hasn’t worked by now the matter will go to court.

In 95% of cases it should have worked anyway.

Common sense is more common than we give it credit for.