Close [X]

Request a call back

Please submit your details if you would like a callback from one of our Case Managers.

Call back request: Click here

In Place of Strife

The Mediation Chambers

Mark Linnell reflects on the seminar - Civil Mediation Council Academic Committee

Saturday, 31st January 2009

At the CMC Academic Committee seminar, an interesting and potentially controversial assertion was made by the speakers, both of whom had been observers at a number of mediations conducted by CEDR and under the Mayor's and City of London Court mediation scheme. The speakers were Debbie De Girolamo and Professor Simon Roberts both of the LSE.Mediators have more power than is desirable in taking over the negotiating role from the parties themselves! It was argued by Professor Roberts that plenary sessions were broken up too soon and mediators exceeded their power by stopping these exchanges just as these sessions were getting interesting. By insisting on 'shuttling' between the parties in their private rooms, this strategy only allowed the parties to negotiate through the mediator.Of course this is what mediators are trained to do. Mediators conduct plenary sessions in the opening phase and in the concluding phase. During the exploration and bargaining phases mediators generally operate by means of private meetings,, only bringing the parties together in an open session for a specific purpose.Professor Roberts argues that this prevents the parties working out a settlement themselves and instead they were dependent upon the mediator. He therefore concluded that the shuttling model was at fault; causing the mediator to get caught up in trying to get an agreement. He argued that the mediator should be the sponsor of communication and not the constructor of outcomes, endorsed by the parties.Debbie De Girolamo stated that mediations are assisted negotiations. She sees six phases through which negotiations proceed. Her research and analysis is based on observed negotiations in the mediation context. Debbie's six phases of negotiation or the 'processual framework of mediation' extends what I see to be the mediation exploration phase to include her two phases of 'testing of positions' and 'shift in position'. She identified human behaviour and interaction as being a key factor for movement or progression. Parties change negotiation strategies from win/lose to win/win over the course of the process to reach resolution, with competitive tactics dominating throughout much of the process.In my view, mediators are familiar with four phases: opening, exploration, bargaining, concluding. Good negotiators skilfully navigate three stages of identifying, narrowing and closing the gap, there are no time constraints and through social interaction they achieve the outcomes they desire. My view, as a negotiator who became a mediator, is that the mediator is assisting the parties and these are not extra phases but are the result of focus on new and old issues, human skills in negotiation, communication and the understanding of tactics and strategy.Yes, the mediators have power (granted by continuing consensus of the parties), but this is limited to the advantage that comes from access to confidential information from all sides. The mediator has the responsibility of identifying the available route(s) towards acceptable outcomes for the parties. This is the fundamental skill of the mediator; it is in facilitating dialogue and negotiations between the parties, helping them to arrive at their own solutions. In a negotiation this privileged knowledge does not exist. The gathering of confidential information can only be achieved by the use of private meetings and with a mediator the parties can trust.Professor Roberts may be right in believing that better and greater use should be made of the plenary, round table meeting. However the private meetings lie at the heart of the success of mediation providing the opportunity for the mediator to acquire his/her unique overview of the private interests of the parties that can lead to the win/win outcome.Mark Linnell

 

Array
(
    [title] => 
    [path] => 
    [mime] => 
    [size] => 
    [name] => 
)
Array
(
    [title] => 
    [path] => 
    [mime] => 
    [size] => 
    [name] => 
)
Array
(
    [title] => 
    [path] => 
    [mime] => 
    [size] => 
    [name] => 
)

< Back to News Archive