One of the great features of commercial mediation is that the process can be adapted to work in many different circumstances. Whilst guides to a model process are offered by ADR (Alternative Dispute Resolution) Centres such as CEDR and others - there is not much in the way of guidance on how to tailor mediation - and therefore this task is rightly left to expert mediators. However there would be a real benefit if clients and lawyers could get more involved. In recent years CEDR in particular has noticed a willingness from law firms to look at different alternatives to the 'one-day mediation' model.
At the International Chamber of Commerce in Paris last month at the International Mediation Roundtable, one of the Workshop topics was on 'Process Design', led by the Scottish Mediator, John Sturrock. In this workshop around 35 mediators from at least 25 jurisdictions around the world put their heads together to understand how best to create a bespoke mediation process that fitted the needs of clients and business - particularly in a cross-border context.
How to tailor-make a mediation
In the spirit of 'bespoking' the mediators gathered in Paris created a process for looking at this topic by forming into six sub groups which looked at different issues (such as working with multiple parties, handling complex technical issues, combining with arbitration and investigation, etc).
Interestingly the majority consensus across the groups was that the pre-mediation preparation stage was crucial to success. In this 'pre-mediation preparation stage' key decisions can be made by the clients, lawyers and mediator to create a process that is most fitting to resolve the dispute at hand. It was agreed that a good way to ensure this happens is by referring to a checklist of options as a reference point for the decision making process. A draft list was produced out of this conversation.
- Educate - those involved in the decision-making in the design process - including clients and their lawyers. They need firstly to understand what commercial or civil mediation is (if they are new to it) and secondly what the design process will involve (see the checklist below).
- Ask logistical questions - understand the basic logistics - even if the answer might be the same in 90% of cases those designing the process should still check. For example: When does the mediation need to happen? How much time is available to mediate? Do people need to be at a particular site?
A draft seven-point checklist to bespoke the process
- Who comes to negotiate? Not everyone is good at negotiating - putting forward their case and showing strong interpersonal skills - so this should influence who attends.
- Where is authority to settle the matter and how far does it go? This should determine who will attend and if others need to be contactable during the process.
- What are the relations between all of those involved? Are there subtle links or allegiances to be aware of during the mediation? This can determine if there might be different groupings or meetings (even if only on one issue).
- Is there any reason why people should not or cannot be brought together at all? This will help inform the meetings that happen and how information should be communicated.
- How prepared and willing to mediate are those attending? Preparation means both in terms of their attitude and knowledge of their case. This could help determine whether additional time or days could be valuable or essential.
- Should a reflection stage be built into the process? This is not to allow for 'cooling-off' but rather a defined break to ensure further thinking about what is on the table versus the alternative in the outside world.
- What are the time constraints? Has the process been designed to reflect this question both in relation to the time available on the day(s) but also on when the mediation needs to happen. The answers to this should be obvious known from the logistical questions above but without recognising these parameters in the mediation it might fail.
The exercise of creating an initial checklist was both interesting and valuable - particularly as many of us in the field believe that the users of mediation are interested in how the process can be flexed to deliver more. Therefore we hope the conversation continues and look forward to both further innovation and development of the practical steps that can deliver that.
Andy is one of the Executive Team at CEDR, working with clients and members, monitoring standards and liaising with industry, government and the media on behalf of the organisation. Andy represents CEDR on the Board of the Civil Mediation Council, the recognised authority in the country for all matters related to civil, commercial and workplace mediation.
In this pre-mediation preparation stage key decisions can be made by the clients, lawyers and mediator to create a process that is most fitting to resolve the dispute at hand.