MEDIATOR SKILLS AND TECHNIQUES: TRIANGLE OF INFLUENCE
By Miryana Nesic and Laurence Boulle
LEGAL DISPUTES: CAN THEY REALLY BE RESOLVED WITHOUT RESORTING TO LITIGATION?
WELL, SOMETIMES AND WE ARE STILL WORKING ON MEDIATION AS THE FIRST RESORT!
An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers
In the not too distant past, the only civil and satisfactory way to resolve a dispute was to resort to litigation with the expense and time which necessarily follows all aspects of formal court work.
In recent years, however, notably in the first decade of the twenty-first century, the current orthodox thinking of the judiciary is that the first stage in any contentious matter should be mediation, sometimes referred to by the phrase Alternative Dispute Resolution in its various forms and with all that entails. The aim has always been simple: cheaper, quick and informal. Well, we will see if that is the case or not here!
The problem is that the nomenclature of ADR can, somewhat unfortunately, generates confusion… and it does when you try to supply such information to the client! This is why Miryana Nesic and Laurence Boulle, the authors of this excellent guide, have wisely made clear at the beginning that mediation is a process in which someone external to the conflict assists the decision making of the parties in various ways, but cannot make binding decisions for them.
Of course, the approach is in contrast to processes in which the external person is, in fact, officially the formal decision maker for the disputatious parties. These processes include the functions of arbitration, adjudication, expert determination and court proceedings, but not, please note, mediation.
The authors confine themselves exclusively to mediation, and explore this rapidly developing field both extensively and intensively with a text rich in detail throughout. The result is a working skills book which focuses on mediation as what they call a distinct analytical model.
Most advisers in this field would agree with Nesic & Boulle that mediation skills can be applied in numerous situations which we would not formally recognize as mediation. Examples include parents, managers, teachers, police officers, receptionists, politicians and many other skilled helpers can all at times be seen as informal mediators of disputes.
Amen to that! And, all the more power to this thorough and comprehensive guide aimed at all mediators, including those members of the Bar and other advocates who are accredited mediators following the advice of recent Lord Chief Justices.
Encompassing, in over 800 pages, examples, case studies, exercises, precedents, guidance notes and other resources within the 13 chapters and 13 appendices, the book provides a guide to the skills, techniques and standards of practice of mediators and discusses the needs, role and function of clients, advisors and other support people in mediation.
The guide covers the following topics:
•establishing the foundation for effective mediation
•maintaining a favourable climate
•diagnosing, defining, designing
•managing the mediation process
•facilitating the negotiations and encouraging settlement
•variations in the mediation process
•special issues in mediation
•avoiding mediator traps
•developing a mediation practice
•EU mediation developments
As explained in the preface, the Triangle of Influence from the title of the work highlights the fact that effective mediation by its nature must always involve three aspects:
•understanding of the people, the issues and the conflict; and
•the legal and regulatory landscape
Depending on the nature of a dispute, litigation is certainly no longer necessarily the first resort in the process of resolving it. Provided the parties are reasonable and acting in good faith, mediation, if sensibly and sensitively handled, can be an effective means of dispute resolution.
We found the section on avoiding mediator traps to be found in chapter 11, with its sub title forewarned is forearmed, is particularly helpful for practitioners at any level. With its eminent common sense approach, this chapter has a useful summary for advisors, and a recommended reading list at the end as do all chapters of the book with the practical tasks for beginner mediators as hands-on exercises.
So, this new skills guide is to be welcomed for the wealth of advice it offers on the most effective mediation skills and techniques when resolving legal disputes without litigation and we are still working on it as the most suitable first resort!