From the CMP Resolution Blog of John Crawley, Lesley Allport and Katherine Graham.
These were words spoken in the context of promoting mediation within court settings in the face of a lack of education about mediation on the part of judges and, surprisingly (?), a lack of enthusiasm on the part of lawyers! The speaker outlined the difficulty there will be in achieving a culture change whereby mediation becomes the default position and recourse to litigation becomes the alternative. Mediators, he continued, will need to ‘give and take’, in order to establish mediation in the Courts. But where is the compromise in mediation? If it is simply about ‘cutting a deal’ or ‘settling for less’ maybe there is some validity in the notion – and maybe this is true for some models of mediation.
CMP’s Interactive Model has as a basic principle the aim of a ‘win/win solution for both parties – not a ‘win a reasonable amount / lose as little as I can get away with’ outcome. If mediation is simply a haggle about money it is bound to be a conversation that involves compromise. If it is about Interest based, Needs Led conversations that build dialogue and understanding, the result is an outcome in which all parties should feel they have ‘gained’ rather than ‘given in’. It may be assumed by some that these kinds of conversations would be restricted to what I have heard referred to as the ‘softer’ forms of mediation – workplace, family, community disputes (that’s another blog!) and yet, as Sir Rupert Jackson himself concedes in his recent report on the cost effectiveness of court based mediation, matters such as Personal Injury Claims are good examples of where parties are looking for more than just money; apology, perhaps, or a sense of closure.
And what of mediators themselves – how far are we prepared to compromise? Some aspects of what we do are non negotiable – the right of the parties to a confidential, protected process; the impartiality of our role and a lack of any vested interest in the outcome; the voluntariness of mediation; the importance of conducting a fair, transparent process in which we judge neither side, and in which all parties have an equal voice.
Perhaps mediators, more than anybody, know the risks of compromise and the need to go through the pain involved in understanding differences in order to find long term, sustainable solutions.