The Mediation Times


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Specialist Knowledge
First of all, I would like to ask you a question: When you were mediating the role plays, did you need specialist knowledge to do so? Are any of you a specialist in the production of mineral water? A specialist in Health and Safety? Environmental Science? Intellectual Property? When you read the case study in preparation did you feel a sense of panic that you didn't know what the exact chemical composition of the water was and if anyone asked you a question about it would you have felt embarrassed?

In depth specialist knowledge is a myth in mediation. Understanding the context of the dispute and the industry or sector is definitely helpful because you will know the language and the basics of how things "are done around here". That creates a sense of comfort with the parties. It helps build rapport. However, because you have past experience they may see you and your opinion as an opportunity for a magic solution, which of course you are not.

Specialist knowledge is important for lawyers in minimising the risk of looking foolish in their suggestion of mediator. If it goes wrong they can truthfully say that this mediator was the best/very well know in the field of "x" and so if she can't fix it then no one can. Specialism has become an point of difference for mediators in demonstrating they have specialist knowledge therefore you should choose them over all the other mediators in the market. It is a marketing angle.

When I started mediating there were no specialists. We were so busy encouraging people to mediate that we did everything and we are the ones that created the success rate of 80% settlement on the day or shortly afterwards. If there is a choice between an inexperienced specialist mediator and an experienced mediator then you should always go for the experience. That experience is about helping people get to a resolution.

There is another consideration: When a mediator is under pressure, when things are not going well, there is a strong temptation to give "specialist advice" in order to get out of deadlock. At that point you are no longer truly independent because you have an interest in the way in which the parties choose to take that advice. This is quite different from giving parties a nudge in the right direction during negotiations (based on your unexpressed opinion) when you have built trust and rapport and they are close to a decision. Charles, what do you think?


When is the right time to mediate and who decides when to mediate?
There is quite a lot of debate about when the right time to mediate is. From the point of view of saving time and costs, the answer is "as early as possible" and in any event, before the costs have mounted up. It can be very difficult to find resolution to the dispute when the costs are greater than the value of the claim.

However, in Greece the issue of costs is not quite the same as it is in England and Wales and because the "time to trial" is much longer, the incentive to mediate will lie more with the claimant who will want to have a settlement to their claim. Defendants might be very pleased that it takes so long! To change this you might need some "direction" from the judges, through legislation and the Department of Development.

From another point of view, the right time to mediate will be when both parties have suffered some real inconvenience and they have a good idea what the issues are.

Lawyers can help in the decision making about when to mediate by helping clients to see the hidden costs of being in dispute and by doing a risk assessment. So for example, with a defendant who has no real incentive to settle and is better served in some respects by the court delays and listing issues, you need to find out what this dispute really means to them and/or their business. You need to dig for the real story beneath the posturing and certainty of being right. You can do this through correspondence and enhancing the pre-action protocol with commercial questions. As far as your client is concerned: Do they want to wait for someone else to make a decision for them or would they rather have the opportunity to have some control over the decision? How many cases settle on the "steps of the court"? Mediation is a much more successful way of getting to that inevitable settlement earlier.

If it is an international cross border dispute then it will depend upon the jurisdiction as to what the legal costs might be but one imagines that the business relationship is worth something.

Is there a quality control issue that will affect the success of their product in the market and which would be better sorted out sooner rather than later.

If any lawyer says that this will reduce their fees then put them to "proof"! There are no reports of mediation reducing the overall fees for lawyers. If you do the work more quickly than the court system allows, you simply get paid sooner! You could do a fees comparison and use it as an example: Take a case and see what the fees were for handling the case. Then take the costs for preparing and attending trial. Estimate the interest over the period of the case and then look at what you would charge for preparing and attending a mediation. What is the difference? Estimate a value for client satisfaction, plus improved outcomes, plus your own satisfaction at a job well done, plus improved cash flow and turnover - what is the answer?


I agree with what Amanda has written-I come from a background of non-specialist litigation work and have always felt that for mediators specialist knowledge is a myth. However some appointing lawyers seem to feel they need it on the assumption that the mediator will agree with their own analysis of the court outcome! But mediators will always avoid giving a legal opinion.