No matter how much you learn about thinking and talking, there will always be someone who will bring the unexpected to the table in a mediation. This became increasingly apparent when I undertook a one-week foundation accredited course offered by the Society of Mediators (“SOM”).
The course should have been in-person, but due to Covid it became a hybrid setup. My colleague John Nee recently wrote about the many positives of emerging virtual mediations (Don’t Stand So Close To Me (In Mediation): How to Conclude a Probate Case In Lockdown – Becket Chambers (becket-chambers.co.uk). Losing out on the chance of observing dramatic exits or table flipping is worth it given how beneficial virtual mediation can be. It can vastly reduce a day’s costs and travel conundrums, as well as providing brief windows of home respite to participants. Practicing virtual mediation set-ups during my training was a realistic way of learning.
Should we all prepare for mediation?
Mediation remains a voluntary process in the civil courts, but this could soon change. Lomax v Lomax  EWCA Civ 1467 presented a more forceful ADR approach from the courts (https://www.bailii.org/ew/cases/EWCA/Civ/2019/1467.html). This case held that a court could order parties to engage in Early Neutral Evaluation, despite their objections. Although not mediation-specific, this demonstrates a clear a step towards ADR becoming less “alternative” than it once was.
Further, the Civil Justice Council published a “Compulsory ADR Report” in July 2021 which demonstrated a clear push in the direction of compulsory mediation (https://www.judiciary.uk/wp-content/uploads/2021/07/Civil-Justice-Council-Compulsory-ADR-report.pdf). The report found that making it compulsory was a lawful concept, concluding that “as mediation becomes better regulated, more familiar and continues to be made available in shorter, cheaper formats we see no reason for compulsion not to be considered in this context also”. Recently published government guidance in July 2021 titled “A Guide to Civil Mediation” further demonstrates the courts’ intention to boost mediation as an accessible tool which parties should consider (https://www.gov.uk/guidance/a-guide-to-civil-mediation).
Learning how to mediate
SOM teaches facilitative mediation skills. Facilitative mediators can advise on the mediation process only and nothing else; the outcome is in the hands of the participants. Teaching on the course is delivered through a mixture of lessons from the tutors, mock mediations, and excellent stories from practice. Learning is done mainly through listening, observing, and getting it wrong before you get it right.
Group work is a big positive here. Acting is required, but it’s for good reason. The more you test your mediator by getting into character, or you are tested yourself when acting as mediator, the more practical issues come out which can be addressed and learned from. As the week progressed, more complex issues from the lessons began showing up in the mock mediation briefs, including what to do when a crime is disclosed, when proceeds of crime may be involved in the process, or when participants require literacy assistance. Examination came in the form of an assessed solo mediation and a written exam.
Lessons for lawyers
Lawyers be warned: being a fantastic advocate is no guarantee that you will find an ADR course easy. The course focuses on co-mediation and solo mediation skills. Both require a significant step back from attempting to control a situation, impose your own judgment, or speak on anyone’s behalf. Asking open questions and giving the floor to participants is very different from the targeted closed questioning of cross-examination. If you’re an expert in a given area of law, keep quiet. It’s not your place to advise on it here. You can only listen, probe, reframe and reflect. SOM discourages the taking of notes by mediators, such is the importance of listening effectively.
This course challenged the way I spoke to people. The language of mediation was emphasised throughout the week. Participants are not “parties”, mediators cannot truly say that they “understand” their positions, and participants should never be asked “whether they have considered” the apparently obvious solution to their problems. Part of the homework set during the course also involved writing our own versions of the opening brief which must be delivered prior to the mediation and drafting our own mediation cover emails to send to participants on accepting instructions. Making it your own is a key part of being an authentic and effective mediator.
I will be beginning my practice as a civil and commercial mediator in the near future. For more information on mediation services in relation to our practice areas, visit Becket Mediation: Becket Mediation | Family & Civil Mediation Services | Kent Mediation.