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Is the biggest threat to the growth of mediation, actually mediation Itself?

14th May 2024

The title of this article may seem pretty much a paradox in itself, and I may come to contradict myself over the passage of text that follows. Yet, after a few years now, following my move into the mediation profession, I have noted several factors that I believe are evidence of the growth of mediation being stifled, if not an element of self-destruction somewhat from within.

We could debate that some fields of mediation are less prone to this self-destructive threat than others; with civil & commercial, family, SEND (Special Educational Needs & Disabilities), workplace and other forms of mediation all having their various nuances as well as the application in different industries, sectors and communities varying.

However, for this specific article I will be referring to my experience and observations in relation primarily to commercial mediation, with a ‘facilitative’ approach, and in a large part relating to the sports industry.

Misinformation, Miscommunication and Misunderstanding

I am pretty sure that many mediators would agree with me that one of the biggest problems for growth, development and acceptance of mediation is that it is often derailed before it even starts. This being due to a lack of understanding and miscommunication (arguably deliberately in some cases) of what mediation truly is, the role of the mediator, how it is undertaken and ultimately the benefits for many from employing mediation.

Yes, mediation comes in a variety of forms, and mediators themselves have their own styles and techniques; but the main pillars for mediation should still remain ……… such as confidentiality, neutrality, cost-efficiency, expediency and mutual satisfaction.

As such, when expectations are skewed based on a miscommunication of what mediation is, the selection of the wrong mediator based on a false assumption of bias or employing mediation when it may not be viable in a particular dispute (or the parties to the dispute) – it is safe to predict that damage to the reputation of mediation as a whole is likely to occur.

Mis-Practice and Malpractice

There is no doubting that the provision of mediation services is becoming a more competitive market; as more people train to be mediators and/or market mediation services. This is to a point satisfied by the increasing awareness of mediation as a service along with the need for mediation, given such factors as strains on judicial systems and high legal costs becoming more prevalent. Albeit the ‘actual’ demand for mediation services is still arguably playing ‘catch-up’ with its provision, at the time of writing.

Yet, one of the most frustrating things for a mediator is not so much losing out on a mediation assignment due to competition, or some of the misunderstandings mentioned earlier, but that one or more parties to a dispute (or their advisors) is averse or opposed to mediation due to a bad experience with mediation in the past.

This is whereby the mediation has not so much failed to garner a positive outcome (if not a settlement) due to the actions of the parties or the premise of using mediation, but moreso the failings in the practice and actions of the mediator who was appointed; and thus, this is commonly the reason mediation has failed.

When is A Mediator, Not A Mediator? When There is No ‘Regulator’!

Whilst there are some non-profit organisations who promote mediation to a varying degree and offer some form of independent accreditation, there is still no regulator for mediators, or a defined licensing procedure.

Accreditations and certifications do not necessarily signify one mediator as being more competent than another, and arguably experience or other qualifications (e.g. legal qualifications) don’t demonstrate competency.

Reflecting back on what I know now; I was quite fortunate with my mediator training as I believe my mentor/instructor would not have passed me or submitted my assessment to the likes of the CMC or IMI if they weren’t happy with not just my knowledge and competence, BUT also my appreciation of mediation and all of the underlying values and principles.

However, I am well aware that mediation training can now be a very lucrative market and dare I say some training providers may well be taking a ‘conveyer belt’ approach in training mediators and thus risk damaging the industry from within.

As such, those appointing a mediator, whether they be a party in a dispute or an advisor to such a party, are open somewhat to ‘pot-luck’ unless they undertake extensive due diligence and truly understand what to expect from not only mediation and the mediation process BUT ALSO the mediator(s) themselves.

Hence, whilst the mediation industry does not have any formal regulator as it stands, the licensing provided by the likes of The CMC (Civil Mediation Council) as an independent accreditation body should be encouraged by all involved. This, rather than the industry be awash with so called accreditations that are given by a training provider on just completing a course (and thus a purchased certificate), rather than an independent evaluation and true understanding of mediation and all of the principles, facets and values and well as a code of conduct that ties in with the ‘European Code of Conduct for Mediators‘.

Is a Legal Qualification a ‘License’ to be a Mediator?

Given the fact that there are no legal prerequisites to be a mediator, the simple fact is that anyone can call themselves a mediator and market themselves as such. In fact, it is I believe possible that a very proficient mediator could be self-taught, given the numerous resources on mediation that are openly available.

So, with that in mind and the legal sphere where mediation is commonly applied, it is understandable that many in the legal profession are seen to be able to act as proficient mediators (either by others or themselves).

Now, I constantly ‘tread on thin ice’ when it comes to this aspect of mediation, but the belief that a legal qualification immediately qualifies you as a mediator is a core frustration for me and many others (and that includes lawyers).

Whilst I appreciate mediation and the legal services industry are interwoven given their relation to disputes, there are many who believe that legal experience qualifies you automatically as a mediator – something I reject wholeheartedly.

Yet this is not to say that a legal practitioner cannot be a mediator; but it is my belief that a lawyer in acting as a mediator walks somewhat of a ‘tightrope’ (both consciously and subconsciously). Not least as the mindset and approach of a mediator should be very different to that of a lawyer or even an arbitrator in a dispute.

Having spoken to many lawyers and others in the legal profession, the psyche of a legal professional is very much engrained in them, and understandably so given the many hours of work and study to enter the legal profession to defend the interests of their client above others.

Winning Back the Disappointed and Disillusioned

As I said in the earlier paragraphs of this article, one of the biggest frustrations is hearing of the cases of failed mediation, whereby the reason for failure lies squarely at the feet of the mediation process, if not the mediator themselves.

Yes, there is damage to the mediator in such a case albeit they still would have arguably been paid for their time. Yet the likelihood of them being involved with the same disputant parties again (or even their legal advisers) in relation to a future dispute is somewhat unlikely; and other parties in another dispute are just ‘around the corner’.

However, both the parties to that dispute and also (arguably) their legal advisors, may be left with a very false and negative impression of mediation that may then be relayed to others and cause damage to many mediators, the mediation industry and many more who could benefit from mediation.

As such, mediation (and mediators) has what I believe to be a battle on its hands – not so much just to grow and develop the mediation industry, the education and the acceptance of mediation; but also, to stem and repair the damage that is done and continues to be done over time.

As in any industry or profession – it is hard to win clients, even harder to keep them ……. but once the damage is done to the reputation of a product, service or provider, winning back those who are disappointed and disillusioned with mediation is probably amongst the toughest of tasks.