Mediation in the Legal Profession

Ludwig.F. Lowenstein Ph.D

Southern England Psychological Services

Justive of the Peace, Vol 163, 4 Sept. 1999, p 709-710

As an expert witness working with the legal system, and a forensic psychologist, I have for many years acted as mediator in a variety of areas - way before it was in vogue! There are probably as many techniques, procedures and strategies on how mediation actually works as there are mediators.

The following article explains my own approaches which may be of value to other mediators or those considering using this approach now and in the future. Table l considers the kind of problems wherein I have found mediation to have a place. Table 2 sets out the rate of success achieved and the steps involved in the process of mediation.

Table 1 - 108 Consecutive Mediation Cases

As may be noted from Table 1, most of the mediation which I practice has been in the area of marital or relationship conflicts. This is followed by industrial or work-rclated disputes either between members of the management team or between employers and employees. The third group has been in the form of other conflicts, usually conflicts between neighbours, parents and children, etc.

Table 2 - Rate of Success

key
A - Very successful
B- Moderate improvement
C - Tcmporary improvement
D - No improvement

Table 2 demonstrates that mediation has had a good result in most cases. It must be stated that the selection of cases for mediation bear a large reason for such successes. This will be noted in the next section.

Selection for Mediation

It is important to understand the criteria for accepting cases which involve mediation. Some clients are not at all willing to accept mediation. In such cases, there must be a very powerful incentive and punitive alternatives to encourage participation in the mediation process. They will, despite everything, be the least likely to have beneficial results or a positive outcome. Next are those who are willing to participate, but they have fixed, inflexible or intransigent positions from which they are unwilling to move to any degree. These are also unlikely to respond positively.

Lastly, the largest group who expect to adopt a more "give and take" approach. They expect to have some of the issues resolved in their favour and they are able to accept that issues will be judged in favour of "the opposition". This group is likely to have the best prognosis for a more lasting and successful outcome. In the case of the largest group (marital and relationship problems) it is of the utmost importance to accept only those clients who agree on the following:

• The mediation process is not a vehicle to "have it all their own way".
• They are willing to view the issues as "problems" that they wish to resolve with the help of the mediator.
• They will be willing to adhere to the decisions made by the mediator with the assistance of the factions in conflict.
• Each faction wishes to find a solution, even if this means giving in more to their adversary and his or her demands.

The last point is the most difficult on which to reach agreement, and yet if the other three areas are acceptable, mediation still has a place. It is virtually impossible to achieve success through mediation when at least three of the above are not attained.

The Mediation Process

Before mediation between conflicting parties can take place, it is vital to ascertain what the conflict is all about. This can be carried out as follows:

1. Seeing those in conflict individually to ascertain -
   1. the reason for their grievance;
   2. what they wish to achieve through the mediation process;
   3. how much each involved in the conflict is willing to give way;
   4. how much power for decision-making they will allow the mediator;
   5. assessing the position of each, using standardized relationship forms;
   6. getting each party ro take an objective and projective personality test;
2. Further:
   1. see areas of agreement with individuals concerned in the conflict;
   2. ascertain areas of disagreement with the individuals concerned in the conflict;
   3. discover areas towards which each of the parties are willing to be shifted with the help of the arbiter.
3. Decide whether there is sufficient common ground hut leave areas of disagreement for the time being.
4. Move the process forward and engage the individual parties in conflict to view only areas of agreement that have been established by the individual meetings with the arbitrator.
5. Meet individuals in conflict to seek to shift some of the issues of disagreement.
6. Meet again with the adversaries to discuss additional areas of agreement.
7. Continue the process of eliminating those areas of conflict still remaining and to encourage each of the adversaries to make further concessions.
8. Only after there is agreement obtained by individual meetings should areas formerly in conflict be presented to both parties when they meet together.
9. Future meetings should be arranged by both parties agreeing to these meetings and the times that they are to be held.
10. Both parties must agree when the mediation process is to end, either because there has been a successful resolution of all or most of the issues in conflict or because no further progress can be made.
11. All parties in conflict should be encouraged to solve future problems, if possible on their own.
12. Failing (11), parties should have access to further help from the mediator if this is necessary, and they both accept such help.

Long-term Effects of Mediation

One is frequently asked, "what are the long-term effects of mediation?" The answer depends on what one means by long-term and what one means by success. In the case of warring adults who have had or still have a relationship through marriage or cohabitation, positive. results may follow successful mediation, but this is not to say that there will be no future conflicts. Having once been counselled in conflict resolution, those in further conflict often try to solve future difficulties on their own by putting into effect what they have learned from the mediation process. Sometimes this leads to success; at other times, they may be in need of further involvement of the mediator. The same can be said for conflicts in business, industry or between neighbours, etc.

Summary

It has been shown how important the selection process is and which individuals are likely to respond to mediation and those who may not.

The success rate is encouraging when one considers the difficulties involved in resolving three areas of conflict, ie, between couples in a relationship, industrial disputes and other conflicts such as those between neighbours. My personal experience of the mediation process demonstrates considerable success in more than 50 per cent of cases over a 20-year period. It must, however, also be accepted that mediation is not a panacea to all problems and many instances and issues cannot be resolved by mediation alone.

Mediation is currently in the limelight as an alternative to the increasing litigation costs and time involved in trying cases before the courts. It is felt, and rightly so, that many conflicts between individuals and groups can more effectively be ameliorated through mediation. The most recent inaugural lecture by the Lord Chancellor, Lord Irvine of Lairg, emphasized the importance of mediation. The Legal Aid Board has also decided to allow mediation to be covered by legal aid. Seeking mediation as a viable alternative to litigation has also been supported by the Academy of Expert Witnesses, the Law Society and the Bar Council.

In the case where mediation fails, there is still recourse to litigation; however, the fact that litigation remains as the final option may in itself encourage solutions via mediation.

It must be understood that mediation and the processes involved is dependent, to a large extent, on the individual carrying out the task. Although skills can be learned, personality factors and motivation play a part in the success of the individual carrying out the "art" of mediation. Among the most important personality traits in the successful mediator are the following: optimism, conviction, confidence, and perseverance. Additional attributes include patience, tolerance, and the ability to gain the respect and support of the parties involved in mediation.