One of the things about mediation is it is done behind closed doors, so it is difficult for anyone not involved on a regular basis to understand what really goes on. By their very nature mediations and their outcomes are confidential, unless the parties otherwise agree. Success stories are rare in the legal press. A mediation finally made it to prime time TV in an episode of Coronation Street last year, but was met with dismay by the mediation community (it did not settle) because how mediation was portrayed. So a very welcome addition to books on the subject is one that tells how mediation really is, and how the process that some proponents describe as ‘magical’ actually works.
Written from a practical perspective, the author (an experienced mediator and former litigation solicitor) takes you right inside the process, from deciding if and when to mediate, choosing the right mediator, how to prepare both physically and mentally, through to settlement and beyond. Particularly enlightening to those less experienced will be the ‘Mediation Clock’ – a diagram and explanation of what often happens during the mediation day and how to move on from the various phases to make a deal. Reassuring to know you are not alone in hitting ‘The Wall’ at around 3.30pm and that there is probably life and settlement on the other side of it. The chapter on Mediators’ Tricks lets out many secrets – advisers will look at mediators with fresh, quizzical eyes after reading it.
The book promotes the sensible notion that a negotiation to settle a dispute is in essence the same as a negotiation to make a commercial deal, and that therefore litigation solicitors, barristers and disputing parties should approach the mediation day from a deal making mindset. Easier said than done, in one day to drop an adversarial mindset that has probably been honed for months or years either by professional training or bitter disputant experience. The author bravely suggests how this can be done by a clear explanation and analysis of how people make decisions especially in circumstances of uncertainty, the influence of emotions on decision making, and common mistakes that people make in assessing risk. This will appeal to the logically thinking legal professional, and are all key factors to understand if you are going to your help your clients make a good decision, which is what mediation is all about. What is missing however is a discussion that in addition to this logical approach, clients may need to take a leap of faith based on inductive reasoning, and how to help them do this.
Possibly the most useful section for mediation advocates is the chapter on Risk/ Benefit Assessment. This explains how to carry out a full pre-mediation analysis, including reviewing the risk/reward and cost/benefit ratios that are a key (yet often overlooked) part of preparing for a mediation. It is time to move away from the legal rights and wrongs and put on a commercial hat. The author tells us “Risk is the estimated likelihood of a known event happening. Uncertainty is not knowing what will happen. A client’s appetite for risk can be measured. A client’s tolerance of uncertainty is much harder to measure. It is important for advocates and their clients when carrying out a pre-mediation analysis to be clear whether they are discussing risk or uncertainty.”
Technical areas are explained clearly using checklists and flow charts.The checklist of psychological biases and heuristics, that gives further meat to the chapter on decision making, is a useful tool to have in your back pocket. Self audits help the reader to apply the information to their particular case. There is even a list of the seven deadly sins of barristers and solicitors, and tips on what to do if you are in danger of committing one of them.
The book aims to help advocates and their clients get the best out of the mediation process in the UK. Its core is civil and commercial mediation, but it does also refer to family, workplace and community mediation. It is therefore a useful reference for all domestic mediation users and practitioners. Given the multi cultural community that exists in the UK, a section on cultural issues in mediation would have been a useful addition.
While the title suggests this excellent book is only for mediation advocates, it will be useful to anyone going to mediation, including the parties. Indeed there is a chapter on self-advocacy with outline opening statements – useful for when the adviser is playing Cinderella and not going to the Mediation Ball. But when you have read this book, you will want to be even more certain you can play a part in this process that, although sometimes shrouded in myth, can work miracles for clients.