What is a good mediation?

What is a good mediation?
 
Hazel Genn has researched mediation over ten years at Central London Civil Justice Centre. At the Civil Mediation Conference in May 2009, she summarised the factors that in her experience make for a ‘good’ mediation.
 
What makes a good mediation for the parties in dispute?

• Mediation must be voluntary – there is very clear evidence that when you are compelled to mediate, you are much less likely to reach an agreement
• You should prepare for mediation – get information on what to expect, and get advice about your case and what you might realistically achieve
• Mediators should make sure that both sides get the chance to have their voices heard
• Mediators should manage the power imbalances between the parties, not ignore them
• Both sides need to feel that the process and the final agreement is fair - the mediator must be clearly independent and neutral
• Mediation works best when both parties respect the mediator for mediation skills, legal knowledge, and experience in the subject of the dispute
• If all of these factors are present, people will probably value the process of mediation even if they don’t get to an agreement
• Finally, mediation is most likely to succeed when your opponent is prepared to be reasonable (this works for both sides, of course)

What makes a good mediation for the legal advisors involved?

• Having a good understanding of how mediation works and making sure your client is well informed about it
• It helps to choose a mediator that you respect for mediation skills, legal knowledge, and experience in the subject of the dispute
• Lawyers or advisors who are going to the mediation session with their clients should be prepared, but not over-prepared – you need to be able to negotiate flexibly
• Lawyers, like the parties themselves, need to perceive that the mediator is fair and unbiased
• Even when no settlement is reached, many legal advisors value mediation as a good opportunity to review the case, and hear the other side’s perspective
• Not surprisingly, lawyers are happy when their clients are happy – especially if a settlement is agreed

What makes a bad mediation?

• Being put under pressure to mediate
• A mismatch between what you expect and what you get on the day of the mediation
• A ‘bad’ mediator – who seems to be taking sides, panics, mismanages the time, or puts you under pressure to settle
• A mediator who does not address any imbalance in power, knowledge or negotiating skills between the parties – being neutral doesn’t mean allowing one party to bully the other

What makes a good mediation for society?
’Justice’ is important for society as a whole. A good mediation doesn’t only resolve a particular dispute, but should serve the interests of ‘peace’ and ‘justice’. A claimant in Hazel Genn’s research who was unhappy with mediation said, ‘[The mediator’s] main target appeared to be to reach agreement between the parties disregarding which party is right, which party is wrong. I wish he would be on the side of the right party.’

• Settlements should reflect the merits of the case
• Settlements should resolve the personal conflict between the parties
• Both sides should be satisfied with the result
• There should be a perception that the outcome is fair

 
May 14th 2009