Remediated mindset

April 29, 2019 10:24
The language of mediation calls for a philosophical approach in which the mediator, despite his or her pivotal role, becomes wholly self-effacing, writes Neville Sarony. Photo: Wikipedia

As a professional advocate, I derive the greatest satisfaction from trials, either with a Jury or a first-class judiciary, so I have a vested interest in the process of litigation.

Consistent with this preference, I used to regard mediation as only appropriate in the context of divorce and related family disputes.

However, recently having completed a training course under the aegis of the Hong Kong International Arbitration, I have changed my mind.

It was a painful learning curve as my forensic skills, honed in the gladiatorial arena of the courts, had to be subordinated to the disinterested techniques of persuading warring parties to reach an accommodation with which both could live.

My initial reaction was to complain that I could obtain answers from the participants in the mediation process in less than five minutes if I had them in the witness box.

Yet, as the remarkably patient course instructors explained, at the heart of the mediation process is the objective of avoiding the toxic issues that have poisoned the relations between the parties and creating an anodyne zone in which communication between them becomes practicable.

A lawyer's instinctive reaction when faced with a problem is to dispense advice but this is anathema to the role of the facilitative mediator.

Consequently, keeping one's opinion to oneself, is an essential attribute if the mediator is to achieve the essential degree of trust from both parties.

Just how sensitive an issue this is can be illustrated by one of the nuggets of advice from the instructors: "Whatever one party says in the presence of the other, even if you approve of it, don't nod, otherwise you will be perceived as favoring one over the other."

Another example of fighting against a natural instinct is where one party becomes excited and the mediator has to restore equilibrium: raising your hands to calm things down can be misread as 'taking sides'.

The language of mediation calls for a philosophical approach in which the mediator, despite his or her pivotal role, becomes wholly self-effacing. For the natural advocate, this is as difficult as breathing under water.

My early pejorative characterization of the process was to describe it as 'vocal valium'. Yet, as the difficulty of adhering to the innate concept of total impartiality was born in on me, gradually I came to a healthy appreciation of the skills demanded.

But to describe it as impartiality is to do less than justice to the qualities required of the mediator.

Winning the trust of both parties is an essential step towards persuading them to confide in the sure and certain knowledge that such confidences will be jealously guarded.

As already stated, the temptation is there to offer solutions, but that moves the mediator into the realm of being seen as preferring one side over the other. In effect, the task is to nudge them towards finding their own solution.

No sooner is that said than the difficulties inherent in such a process become glaringly apparent.

At the heart of the mediation process is the task of getting the individual parties to recognize what their true interests are. This evolutionary technique is described as "active listening".

Even this wholly inadequate analysis of the process of mediation illustrates that it is a tool that is most appropriate in the context of a clash of individual personalities: neighbors, business partners, family disputes other than divorce.

The gifted mediator has to mine the guarded fears of each party in such a way as to help them to see a way through the emotional defensive mechanisms that we erect to protect ourselves.

In simple terms, the process is to create an entirely neutral space in which the parties recognize their individual strengths and weaknesses and are assisted to reach out to each other for a solution.

The consequence of this is that mediation is essentially for individuals in conflict to find an accommodation.

That is why mediation is peculiarly appropriate for divorce, protecting the interests of children of broken marriages and the concomitant financial settlements.

What I have been describing is characterized as 'facilitative mediation' and must be distinguished from 'evaluative mediation'.

The evaluative mediator plays a far more active role in the process, using his or her training and experience in a specialized field to assist the parties to a critical examination of the merits of their claims.

The corollary is that facilitative mediation is not ideal where the conflict is the individual against an institution.

Curiously, if a clinical negligence case was mediated between the patient and the doctor, I can well see how a skilled mediator could effect a resolution between them.

But these disputes are conducted between the patient's lawyers and the doctor's insurance company appointed lawyers. Even if you strip out the lawyers, you are left with the patient and the insurance company's representative whose primary concern is either to avoid liability altogether or get out as cheaply as possible.

Theoretically, a mediator could examine the clinical strengths and weaknesses of each party's case but this moves it into the realms of evaluative mediation, a very different animal from the facilitative model.

The underlying interests of patient versus insurer are a far remove from the motivation of the principals to such a dispute.

Litigation is an extraordinarily stressful process which exposes the parties to the trauma of structured conflict over a period of time that often stretches into years.

Wherever the parties to a dispute can avail themselves of facilitative mediation, emotional stress, financial expense or animosities can be mitigated, curtailed or, in some instances, virtually avoided.

Life throws entire truckloads of problems at human beings. The process of facilitative mediation provides a man-made means of resolving a vast tract of such problems.

Much depends upon the skills of the individual mediator. The course provided by the Hong Kong International Arbitration Centre opened, for me, an entirely novel mechanism for dispute resolution.

Like Dr. Jekyll, my newly acquired mediation skill set has to be sharply distinguished from my Hyde-like adversarial forensic skills, such as they are.

I shall continue to relish being barrister Hyde but from now derive considerable self-fulfillment from Dr. Jekyll, the mediator.

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