What does a mediator really do?

I have been asked this question a number of times this month by people ranging from a highly experienced QC to a litigation solicitor and a party in dispute.

I can understand why this may be a mystery to many. After all, even if they have been to numerous mediations, they will have probably seen the mediator for at most half of the time. A great deal of what happened the rest of the time is confidential and cannot be disclosed to them.

So let me unravel some of the mystery…

A good mediator will help a party:

• to ascertain what they really want, and what is important to them;

• to understand the strengths and weaknesses of their case, not just from a legal perspective, but also from an evidential and a commercial point of view;

• from there, to do a cost: risk benefit analysis for the best, worst and most likely outcome at court. In other words, how much would they net receive or lose depending on the court decision. The cost: risk benefit analysis is expanded to consider other factors such as management time and resource, stress, loss of ability to take up other opportunities/ loss of sleep (yes, really);

• to overcome blockages to decision making by addressing psychological biases (watch this space for a future blog). As a taster, see this short video ‘Capuchin monkeys reject unequal pay’ https://www.youtube.com/watch?v=L2ui97YPPsg

• to structure a deal that works for all, taking into account all of the above, and the future plans of each party.

A good mediator will also enhance communication between the parties by:

• ‘taking the ‘heat’ out of what is said by one party by rephrasing it in more neutral terms to the other;

• Ensuring the timing is right for when key messages are conveyed; and

• if authorised, tell each party the other feels the same way (a powerful message, often unsaid in earlier direct communication between parties).

These are just some of the many techniques a mediator has in their toolkit. No two mediations are ever the same, and a good mediator will select the right tools for the job on the day.

Rebecca Attree, Mediator and Solicitor, Attree & Co