Rosemary Howell of Strategic Action looks at commercial mediation as an evolving area of law.
"Mediation has been clearly revealed as a work in progress. As the number of practising mediators has grown substantially, the field has become increasingly diverse."
Mediation academics and commentators present different views of mediation’s origin. For some, mediation had its beginnings with the ancient Greeks and their third-party interventions in conflict. For others, Professor Frank EA Sander’s paper, “Varieties of Dispute Processing” at the 1976 Pound Conference, was the catalyst for all modern dispute resolution thinking and practice. For this writer, the ideas coalesced when Andrew Acland wrote his influential text A Sudden Outbreak of Common Sense in 1990. With his elegantly presented, facilitative process, it seemed that common sense had indeed broken out.
Acland had been mediating since 1985, as assistant to Terry Waite (envoy to the Archbishop of Canterbury) and his facilitative mediation model was influential and persuasive in the training programmes developed in Australia. His definition of mediation as “assisted negotiation” remains durable and relevant in the face of significant evolutionary changes.
Here in Australia, the facilitative training model was universally adopted and remains the paradigm. International training programmes adopt the same approach, as professional colleagues confirm. Trainees completing their training programme expect to be embarking on a professional practice in which the mediator is the guardian of the process while the parties and their advisers take responsibility for the substantive outcome. In practice, things are very different.
Three important things have happened
The first is that mediation has been clearly revealed as a work in progress. As the number of practising mediators has grown substantially, the field has become increasingly diverse. Specialist mediators are commonplace and some jurisdictions, such as family law, regulate mediator training, qualifications and process. Academics and researchers observing how mediation is developing have updated their texts to identify a range of different mediation processes which have emerged as mediation has moved from its inception towards maturity. Many different forms have been identified and new forms continue to be discussed. At present it appears that three models are most commonly experienced: facilitative, evaluative and transformative. Current developments observed by this author suggest the growth of a fourth – settlement mediation – in which the mediator acts as the facilitator of a conventional settlement conference. This may not actually be a fourth model – it may simply be part of the changes occurring within evaluative mediation. Others, such as narrative mediation, continue to be discussed in literature but are not yet discernible in practice here.
These analyses all result from a need to observe and reflect on how the experience of mediation is changing and what the players in the field and their broader constituency need to do about it. In fact it may be unhelpful and inaccurate to focus on models when the reality is that mediators move in and out of different processes, even within a single mediation and there are enormous differences in mediator conduct arising from technical skills, training (and there are still many untrained mediators) and behavioural preferences. The thoughtful work of Professor Len Riskin and his various iterations of his famous “grid” analysis are a great example of how tortuous it has proved to map what mediators do and how they do it. The key point is that there is a clearly identifiable gap between what mediators are trained to do and, as a result of many factors, what mediators actually do.
The second important factor has been that, at least for disputes occurring within the shadow of the law, lawyers are the “wholesalers” of disputes and have the most significant influence on which mediator is selected and how the mediator will undertake the role. Despite many definitions which refer to mediation as the “clients’ process” and even taking into account the growing role of general counsel in the resolution of commercial disputes, it is the external lawyers who control selection. Anecdotal evidence, supported by mediators practising nationally and internationally, is that the greater proportion of lawyers seeking to appoint a mediator prefer evaluative mediation by subject-matter experts, where the mediator takes a view of the outcome of which the parties and their advocates can be convinced. Within the last 12 months, the author has attempted to test this via a series of interviews with senior, experienced lawyers and mediation professionals who between them participate in hundreds of mediations each year. The recurring theme emerging from the interviews is that mediation training and mediation practice operate in parallel universes and that lawyers prefer the evaluative style. The gap between training and practice is real.
Thirdly, the international pressure for accreditation of mediators has reached Australia. Increasingly a mandatory process, mediation here is becoming subject to more scrutiny and regulation. To regulate mediation requires that it be defined and our National Mediator Accreditation System (NMAS) presents facilitative mediation as the model. The standards which operate under the NMAS (to be used as a basis for accrediting mediators and establishing a model for compliance) note that “[m]ediators do not advise upon, evaluate or determine disputes”. However, the standards, perhaps in recognition of the growing dominance of the evaluative model, acknowledge evaluative mediation as a “process that involves the provision of expert information and advice” and characterise it as an adjunct to the facilitative process, rather than as a stand-alone process, while restricting it to situations where there is clear consent from the participants. This nod to evaluative practice through the national accreditation process has not yet translated into commensurate changes in mediator training programmes.
It seems likely that the gap will continue to widen. In Australia, the high-profile and frequent utilisation of (former) judges-turned-mediators, many of whom have chosen not to pursue training in mediation or national accreditation, give prominence to the evaluative approach. The widening gap continues to be a source of frustration for a range of constituents and accounts for a volume of traffic on mediator blogs.
It is time to give more attention to the solution. The solution is important not only because the current situation lacks congruence. It is important because, as a community of dispute resolvers, we have in our midst a discordant situation which is creating tension, friction and judgemental behaviour and whose resolution should be the perfect way to showcase our skills. We need to find a way to be inclusive rather than exclusive and to remove overtones of “right” and “wrong”.
Four possibilities seem worth considering
Train to the range of models
This could involve identifying the range of models and offering specialist training for each of them. It could also include training in hybrid models such as med–arb and arb–med–arb, which are working their way into the marketplace as further examples of the continuing creative development within the ADR Continuum. This approach might involve changing the accreditation regime so that there may be model-specific accreditation. As different models emerge or changes are identified, continuing enhancements to the training regime could evolve. Some work has already been done towards this end. Professor John Wade from Bond University has developed “advice-giving” modules within the conciliation regime for Fairwork Australia. He has also created an evaluative mediation training programme for Mediate BC in Vancouver (although it has not yet been confirmed that it will run).
Change the training regime so that it covers a broad spectrum of mediation approaches
This could give trainees the opportunity to build a repertoire across a range of models. This training could be treated as a primary qualification for mediators with further, tertiary training available across a number of fields. These could include technical specialities (such as family law; intellectual property; banking and finance; insurance and construction) and in-depth training in mediation models such as the facilitative and evaluative. This would also require changes to the accreditation regime which would be similar to the advanced mediation programmes currently being accredited.
Abandon the use of “models” (which necessarily require definitions and hence boundaries) and recognise that categorising mediation by models is not useful and does not reflect the current state of mediation practice
This could involve a training environment similar to what is proposed in the first solution posed above, covering all aspects of mediation but without differentiating them by “model” and presenting an inclusive mediation model which contains a wide spectrum of repertoire and skills drawn on according to the situation and consumer (as distinct from lawyer) expectations.
Train the constituency more effectively
As noted above, lawyers are the wholesalers of disputes and have the most significant influence on the choice of mediation approach. The National ADR Advisory Committee (NADRAC), which is the ADR adviser to the Australian government, is currently encouraging Australian law schools to enhance their commitment to the teaching of ADR. One outcome of this should be that the next generation of lawyers has a better understanding of the breadth of the mediation offering and a better informed ability to “fit the forum to the fuss” to take Professor Sander’s exhortation to us a little further than he intended.
The stranglehold which lawyers appear to exert over the choice of process also impedes what was once considered to be a key feature of mediation – namely that it is the clients’ process. In fact many clients (perhaps with the exception of the better-informed general counsel) have little understanding of what mediation experiences are available to them and how they might play a role in the selection. Perhaps it is time to return the owners of the disputes to their rightful place by well-placed awareness programmes in schools.
There are undoubtedly other options. However, doing nothing should not be one of them just because the problem is a difficult one. This author does not share Professor Wade’s view that:
With the passage of time, repeat users of mediation services will slowly expand their repertoire of “types” of mediation and personalities of mediators, and use more sophisticated diagnosis and preparation to match the “right” disputes with the appropriate mediation service and personality.
This is not something to leave to chance. This is something for which the mediation community needs to take responsibility. Mediation bloggers need to stop focusing on the problem and start collaborating on the solution.