Despite the rise in mediation, unfortunately many still experience something far different to mediation in its true form.
Regardless of whether mediation is voluntary or compelled, proactive or reactive, it is well established that it works – a likely reason driving courts, tribunals and law makers, as well as the business community, to increasingly choose mediation over traditional litigation.
In 2021, there are virtually no civil cases running to trial without parties first participating in mediation, and the post-pandemic backlog of cases will only serve to increase this trend. This, and those in the commercial world demanding efficient dispute resolution processes and outcomes to keep pace with an ever-quickening economy, will see more disputes referred to and resolved at mediation - before and after legal action is commenced.
Put simply, mediation is no longer the alternative, but the norm.
This requires a change of mindset and approach to mediation across many sectors, including the legal profession. For lawyers, this might be seen as a threat, or an opportunity to better meet their clients’ interests. The latter is ideal.
Accepting this, clients and professionals must shift their thinking from whether to engage in mediation or not, and move towards focusing on achieving quality process. This requires greater emphasis on mediator selection.
Stephen Dickinson, Mediator and elected member of the Mediator Standards Board explains that mediators perform a vastly different role to that of lawyers and those that are practiced in determining matters. Dickinson considers this to be a real dilemma facing the profession, “unfortunately lawyers’ and parties’ experience of what they understand to be mediation is often something far different to mediation.”
Having been trained with a different skillset, “Lawyers, and lawyers who conduct mediations, often fall into the trap of making assumptions on the papers, causing them to impose their own thinking on the process and the outcome, contrary to fundamental principles of mediation...” Dickinson highlights that issues which may appear irrelevant to a particular dispute from a legal perspective, may be central to the parties’ circumstances and objectives.
While mediators will vary in their processes, and - like lawyers - every practitioner has their own unique style, it’s important that lawyers recommend mediators that have the necessary training and skills to conduct a process that is most conducive to good faith negotiations and meeting their clients’ needs and interests.
Dickinson observes, “in certain matters, this may call for a mediator with considerable legal knowledge and gravitas, however in most matters, whatever the subject matter and issues in play, it is the training and experience of the mediator as a mediator that is most important”.
Accredited mediators are trained to encourage parties to remain open-minded in identifying the real issues in a dispute, as well as their underlying needs, before turning to solutions that may not otherwise be considered or achievable in traditional dispute resolution processes.
He notes, “Party-involved processes are more likely to achieve resolution, and party-controlled outcomes increase client satisfaction. This is best achieved by ensuring quality of process, and therefore requires a certain quality of mediator.”
As with any profession, with growth in demand there will be a growth in supply, competition, specialisation and quality. It is now incumbent on lawyers to consider specialist training and accreditation beyond mere legal experience and qualifications when engaging or recommending mediators to clients. As Dickinson observes, engaging mediators with both skill-sets may be “the best of both worlds”.
In Australia, there are now more than 3700 accredited mediators and 39 Recognised Mediator Accreditation Bodies (RMAB) registered under the National Mediator Accreditation System (NMAS). This is the only nationally recognised industry standard for mediators in this country, and is well recognised by regulators, with NMAS accreditation a prerequisite for inclusion on most if not all State and Commonwealth mediation panels, and across most industry bodies and regulators.
To become and remain accredited, NMAS-accredited mediators must complete a minimum level of mediation-specific training, undertake independent assessment, become registered with an RMAB, commit to ongoing CPD and maintain necessary professional indemnity insurance.
“When you are next engaging or recommending a mediator, the question should be, ‘Are they accredited?’”
Find out who is accredited at the MSB National Register or find a Recognised Accreditation Body to discuss becoming accredited.
Published on 26 Aug, 2021