The Rise of Mediation
When a dispute arises as a result of one party not conforming to its obligations under a contractual relationship, the other party may try to negotiate to see if there is any chance of reaching a settlement – even though the outcome may be a compromise. If that fails, the party will usually either instigate arbitration – if such a clause, sometimes called an arbitration agreement, is contained in the contract – or turn to litigation to resolve the dispute. Until recently, many people would have never considered the idea of mediation, believing it to be a sign of weakness.
With the introduction of civil justice reforms and the court practice of advocating mediation, the community is starting to accept mediation as an alternative form of dispute resolution. Nevertheless, some use it as a way of delaying the resolution of a dispute, hoping to maximise the benefit of their existing contractual relationship. This creates a situation in which mediation is used purely as a delaying tactic.
This perception is having a negative impact and, to an extent, has affected some people’s view of mediation. To ensure a fair share of the benefits of mediation, its advocates emphasise the need for commitment and a willingness to attempt mediation in good faith. A mediator must ascertain these factors from the parties involved, either at the intake session or during the opening statement at the mediation session. Only when participants express their commitment is the mediator in a position to assist them in achieving their anticipated outcomes.
The Differences in Approach
Another major factor which must be understood is that the mediator is only there to assist the parties and not to adjudicate in their dispute. Some people advocate “evaluative mediation”, where the mediator is asked to make a decision on the matter which essentially is not binding on the parties until they have executed a settlement agreement. This form of mediation may expedite the resolution of the matter, but the parties frequently fail to agree to the decision, thus making the process redundant and a waste of time and resources.
In addition, by giving advice, the mediator is put in an awkward position where claims of negligence can be filed against them. This renders the process risky, no matter what precautions they take. However, other schools of thought have advocated the use of “facilitative mediation” as a way to assist parties in resolving their differences. The advantage is that the parties are engaged throughout the process and that they determine the outcome, making acceptance highly probable. From this factor alone, a mediator needs sufficient knowledge and in-depth experience to apply theory in practice. This may seem simple and many aspire to become mediators because they see the role of assisting people in resolving their differences as a crusade, with the added benefit of being paid.
The question then arises as to how you become a mediator. The path to success varies from person to person. Can the old saying that some people are born to be leaders also be applied to mediators? To those who have spent time and money in pursuing a career in mediation without actually gaining much experience as a mediator, this might be true. In reality, it is how you position yourself. There are many similar products on supermarket shelves. Understanding shoppers’ habits and needs is crucial if you want them to purchase your goods. Having the skill sets is one thing; understanding clients’ needs is another.
One way of getting noticed is involvement in community work – the kind where you can exert the strongest influence in altering people’s perceptions on resolving disputes and encourage them to use mediation where possible. People will remember you, and if a dispute occurs in their business dealings, they will approach you.
Another way is taking part in dispute-resolution conferences and seminars as a speaker or one of the organising team. This enables you to maintain your knowledge and get to know key personnel, which offers a platform to promote your competence and abilities.
The Road Ahead
Success as a mediator lies in two aspects: one relating to your abilities in turning theory into practice to convey a sense of professionalism that tells disputants you have what it takes; the other being whether you are willing to go the extra mile. This is not easy and requires hard work, perseverance, a can-do attitude and a willingness to strive for excellence.
To those who embark on the path to becoming accredited mediators, or are already in the field, the road ahead may seem uncertain and full of hurdles. Only if you have the right frame of mind, the patience, and the heart and soul in believing in this form of dispute resolution will you be able to achieve your goal of being a successful accredited mediator.
Disputants will feel your passion and empathy. They will know deep down that you care about them. This builds trust and openness, leading to a successful settlement agreement. Do not lose faith in mediation, because it needs you to take it one step further. I urge you to get involved and help lead it to new heights.
Christopher To is a member of the General Mediation Interest Group of the Hong Kong International Arbitration Centre’s Hong Kong Mediation Council
The information contained in this article should not be relied on as legal advice and should not be regarded as a substitute for detailed advice in individual cases. If advice concerning individual problems or other expert assistance is required, the service of a competent professional adviser should be sought.
