Martin Brink: The market for mediators has changed noticeably in the last five years. Several professional mediation firms have been set up, sometimes organising a franchise, sometimes as a group of mediators combined under one brand name. However the majority of mediators still conduct their activity as a side activity next to another profession (attorney, psychologist or other); ie, part-time. Most mediators practice stand alone. The majority belong to a professional association of mediators. In the Netherlands there are 3,000 registered mediators. About 1,000 of those are working as internal mediators within a (semi) government organisation. Of these 3,000, 380 are under 40, while 1,035 are between 40 and 50, and 1,617 are over 50. The latter group makes up 53 per cent of the total number of registered mediators.
In order to remain certified in the register of mediators, one needs to do nine mediations in three years. About 2,000 of the 3,000 registered mediators realise this with a certain effort. About 500 do exceed this number. As far as this is known only a very limited number of mediators practice mediation full-time.
There is an increasing specialisation among mediators based on substance matter expertise. Various organisations of mediators organised according to substance matter expertise exist, eg, administrative law, insurance, tax, general commercial and corporate.
John Sturrock QC: It is hard to say. I work in a number of different markets. In England, my sense is that mediation in commercial matters has stabilised. The recent CEDR survey provides information and statistics. In Scotland, full-time mediators, of which there remain few in this smaller market, will have aged a bit in five years! That is not just because mediation has changed. Full-time mediators are probably in their fifties and sixties. However, I sense that a younger generation is coming through and looking to take their opportunities – that is essential if mediation is to thrive in the future. That said, the fact that the experience of full-time established mediators continues to grow, thus inclining clients to use them, remains a problem for new mediators in this emerging profession.
Martin Brink: In the Netherlands – as is my impression in other countries – it takes a lot of time and effort to build up a mediation practice. An average of 10 years is not unusual. In order to make a living many mediators and institutions of mediators turn to educating and training would-be mediators. This, on the one hand, saturates the market with mediators – but on the other causes many people to learn about mediation and acquire mediation skills. This is beneficial to society as a whole. In order to stand out one will have to acquire unique selling points and a recognisable profile in the market. In most cases this is done by distinguishing oneself as a mediator with substance-matter expertise. Only in that manner can fees be charged which are more than average. Parties attach value to the substance-matter expertise of a mediator because they find it hard to otherwise determine the quality of a mediator. Membership of an professional organisation and certification by such an organisation will add to the trust that a mediator knows what he or she is doing. The government in the Netherlands intends to regulate court-annexed mediation in order to be able to cut budgets for the court system. It will try to nudge parties to mediation away from the adjudicative system. This can only be justified if the fees of mediators in court annexed cases can be controlled.
John Sturrock QC: Undoubtedly, as elsewhere, Scotland has more trained mediators than demand for their services requires. However, a trend in training is away from assessment as a mediator to the use of mediation skills in business, leadership, the professions and public sectors. That is a good thing and encourages the ideas behind mediation to be developed more broadly. That is certainly happening in Scotland. To stand out, as ever, a mediator has to be viewed as competent, experienced, innovative and good with clients. I am not sure that there is an impact on fees. The market plays its role as always.
Martin Brink: A successful mediator – as has been shown from ample research in the USA – is someone who can gain rapport with the parties. Being able to gain and maintain the trust of both parties is the key issue. This requires skill, but also call it the “P-word”: personality. Of course solid training and knowledge of mediation theory are essential, but in my opinion in mediation it all comes down to respecting and observing the key values of mediation. Autonomy of the parties, as well as voluntariness of participation, neutrality of the mediator, confidentiality and the freedom to end the mediation if one is not happy with the way it is going, are such key values. A mediator who respects and observes those key values is likely to be succesful because then not much can go wrong. By and large it is the personality traits that will make the difference. Not being faint-hearted, daring to allow parties to show their emotions, patience, perseverance and humour are some of those traits.
John Sturrock QC: Ability to build rapport with parties quickly and effectively, and to show empathy with them while remaining impartial at all times. Being both approachable and robust while staying optimistic throughout the process. A combination of directness and rigour in getting to the heart of the issues, with a genuine respect, empathy and warmth for those involved. Being engaged and committed, and not afraid to give a steer to the negotiations. Having a good knowledge of background law can really help and also a good understanding of commercial factors – and a good commercial manner with parties. An ability to “read” a case and an ability to identify instinctively the right approach to handling the mediation. An ability to quickly focus on critical issues and to convey complex material in a simple manner, with skill in pulling together widely disparate threads and knowing when and how to take matters forward. Adaptability to fit the dynamic of the particular dispute and the style/personalities of the parties and their advisers. Awareness of the dynamics of the lawyer/client relationship and understanding of the pressures for advisers, particularly with a challenging client. Remaining in contact with parties after the mediation day to assist them in reaching an agreement if necessary.
Martin Brink: Research in the Netherlands has shown that on average a mediation lasts 10 hours. This figure is based on all sorts of mediation. Otherwise it is difficult to say much about the speed of settlement in mediation, since it all depends on the kind of cases being mediated. I am what is called a corporate mediator. This involves conflicts within and between organisations. These cases are mostly complicated, ie, corporate and financial disputes. On average it takes one, two or three sessions of a full day before a settlement is reached. Settlement has also been reached in the 10 hours mentioned above, but one case has taken as much as two years (my maximum); another, not long ago, took 18 months to come to a final conclusion. Settlement rates in the Netherlands on average are over 65 per cent and stable. In my case it is 98 per cent.
John Sturrock QC: Recent research by CEDR in England shows a slight drop in settlement rates on the day with a commensurate increase in settlement shortly thereafter. Overall, these remain high, above 80 per cent. In my experience the vast majority of matters do resolve on the day, or very soon after. The momentum of mediation and the fact that nearly everyone involved, despite some observations to the contrary, wants the matter resolved, leads even in complicated cases to such an outcome, with the help of a competent mediator. The more we understand the neuroscience behind disputes and problem-solving, and the more mediators and advisers move from the old adversarial paradigm to skilled, interest-based approaches to negotiation, the more useful mediation will be.
Martin Brink: The impression that “with the help of a competent mediator” most cases are resolved on the day, or soon thereafter, invites the observation that this may be true for bread-and-butter mediations. There is a market segment – corporate mediation – where many mediations do not involve just an exchange of arguments or a resolve in the sense of sorting out the legal and technical points involved. This category of cases requires the continued involvement of the mediator during the entire roll-out of a process, eg, the design of a new corporate governance structure, the disentanglement of a joint venture or similar processes. In the more complicated cases in this sense, one or two days will mostly not be enough. Mediators live in different worlds. In one world most cases settle on the day or soon thereafter; in another things are just not that simple. The difficulty when talking or writing about mediation is that this is often overlooked.
Martin Brink: There are various views where it comes to the question what lies ahead in promoting the use of mediation. Many mediators look at the legislator hoping to secure work for them by creating court-annexed referral systems. Given the objective of many governments to cut the budgets involved with government provided adjudication provisions (the court system), it is likely that those mediators will obtain support from the government in deviating litigants towards mediation. My personal belief is that mediators ought not to rely on the government to help them find cases, but to go out into the marketplace and demonstrate the benefits of mediation and earn their laurels as a successful mediator. It is my belief that time should be allowed to have mediation drip into every corner of society. People will come to appreciate mediation in the end as beneficial to themselves.
Mediation has suffered from overly enthusiastic expectations. Disappointment is an element of expectation. It is still a young profession. It is best compared with organic food products: for the first few years they were not a success, and considered part of a sort of subculture; but once people started to realise that organic food is beneficial to one’s own health, things took off. Now every shelf in every store is packed with organic or healthy products. This will happen with mediation. Research shows that once parties have gained experience with mediation, they declare that they will use it again next time. There are vast opportunities for expansion of mediation, but it will not necessarily mean that mediators will get more work. Mediation skills will by and large become household skills in many institutions, governmental and other, and so make people deal with conflicts differently. Still, for mediators who will seek a recognisable market position on the basis of substance-matter expertise, branch knowlegde and other unique selling points, there will be more than enough to do.
John Sturrock QC: Mediation is indeed still a relatively new approach in its modern forms. There are great opportunities to expand its use. It will require continued innovation by those who have benefited from its growth in recent years (and for whom complacency and fatigue could be a problem), and also by the next generation. We can move on from merely seeing mediation as an adjunct to the litigation system, to encouraging its use as a primary means to help parties resolve difficulties before getting locked into that system, in much greater application in workplace conflict (as an alternative/precursor to disciplinary and grievance procedures), in the allocation of limited economic resources and in policy and political discourse and decision-making.
This will take imagination, resources and some courage. The danger is that in-built resistance from the institutions which are fearful of change and loss of position, combined with system inertia and aversion to change generally, will impede mediation’s growth. We need to be careful, too, about the financial aspects. Mediation needs to be valued properly and also available to all possible users.