Mediation training tends to follow one of three models: facilitative, transformative or narrative.

With the facilitative model, mediators are taught to actively listen, reflect and summarise. On the one hand, this helps parties to feel more certain of their positions. On the other, it gives each party the ability to recognise the position of the other and empowers all those around the table. But does it help the parties to find a clear solution to their complex problem?

In transformative mediation, empowerment and recognition are key to enabling the parties to feel confident enough to engage in a meaningful discussion.

Narrative mediation, is a middle ground between transformative and facilitative mediation. In this style of mediation, the narrative and background to the disputants and how their stories unfold or could unfold are key. It is a model based on how backgrounds shape and form the parties in their attitudes to disputes. Dr Camaron Thomas discusses the practical applications of this model in her book ‘The Wisdom of the Brain: Neuroscience for Helping Professionals’. She says: “Beneath our everyday mind patterns lies a set of expectations we each carry around with us about the world: rules about how things should happen.” A mediator with an understanding of the cognitive function can therefore recognise such inbuilt values and work with parties to address preconceived notions learned in parties backgrounds to help them re-think their situations and place the conflict in context. That adds value to the process. In all three models, the mediator engages with the parties, encouraging them to seek a solution where neither party is able to find one.

In commerce, time is a precious commodity, even more so for parties needing a positive settlement, so they can spend more time and resources on the growth of profits and assets. This means commercial disputes need to engage in a model where the time to find a settlement is reduced. The time spent fighting a dispute is a waste of valuable resources.

The growth and use of the fourth model, evaluative mediation, is one where a skilled mediator can add real value to the process and also to the settlement.

One of the great advantages of mediation lies in the wide selection of solutions to disputes; over which a Court has no jurisdiction. A Court can order an apology in a case of defamation but not any other course of action. Courts can order damages for breach of contract or liability. They cannot order additional supplies at a substantially reduced price; or the provision of a different range of goods over an extended timetable.

Thus, mediation presents a blank canvas for a skilled mediator, providing them with an opportunity to use their skills in not only teasing out potential solutions from the parties themselves but to suggest alternative avenues for exploration by the parties. In litigation, a Court is restricted to two basic remedies – monetary damages and restitution where possible. Outside of litigation, mediation can provide a far wider choice of solution and at a much cheaper cost than proceeding before the Court. It is here that a mediator can help unlock a negotiation to add value to the process.

However, if considered from a literal sense, a skilled mediator can add value if permitted to use the evaluative model and the more so by either drawing parties’ attentions to a range of alternative solutions; or, through the evaluative process helping the parties to better understand their likely prospects of achieving their Best Alternative to a Negotiated Agreement (BATNA).

Finally, if permitted a Mediator can add value by making a Mediator’s Proposal. That is a suggestion of where the Mediator thinks the dispute might settle. He or she then puts the proposal to the parties and if both parties agree, then settlement is reached. If one party disagrees, then there can be no settlement.

These days we understand so much more of the role played by what we know as cognitive or implicit bias and its effects on behaviour in negotiations. A good mediator will need to understand this really well as he or she works with parties to help them reach really good outcomes.

The forthcoming Chartered Institute of Arbitrators annual Mediation Symposium on Wednesday 27th September 2017 is hosted by Ashurst LLP in London and will be delving into the issues touched upon above with a view to exploring how we can add more value to the process.

For event enquiries please contact Primrose Ante-Bennett on +44 (0)20 7421 7427 or email PAnte-Bennett@ciarb.org

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