Process and dynamic of mediation

Sarah Higgins and Shona Alexander speak about the process and dynamic of mediation, including how clients find out about mediators, neutrality of mediation, preparing clients for their first meeting, the screening process, and location of sessions.

This video answers the following questions:

• How to find out about mediators?
• How do mediation sessions take place?
• How best to prepare for mediation?
• Can mediation take place remotely?

For more information on the topics covered in the below video do not hesitate to contact a member of the team.

Transcript

Sarah Higgins: Okay, so Shona thank you very much for joining me for a discussion as part of a series on mediation. One of the things that is interesting to think about, is how most mediations come to mediators, whether they are coming from a lawyer or whether they are coming from people directly. What sort of understanding do you find your clients have when they come to a mediation session?

Shona Alexander: I think it’s a real mixture. We have some clients who come directly, they have looked on the internet, or they have gone on the resolution website and have decided they want to come to mediation. Otherwise, they have come via solicitors and that’s where you get the difference in knowledge. So quite often, if they have come directly they have got some knowledge but it might be a bit limited, however if they have come through solicitors, they generally know exactly what mediation entails and how it is all going to work through.

Sarah Higgins: What do you do about neutrality? Because of the things that I always emphasise to clients when I am talking about mediation and encouraging them often to go, is to say that the mediator is neutral. And I think some of them find that a bit difficult because they are used to a lawyer acting for one party. So, how do you reassure them about that?

Shona Alexander: It’s all about communication, it’s having that discussion right at the outset and explaining to both that I am going to be neutral. I’m not going to pass judgment, I’m not going to give advice. I am there to help them reach the right agreement for them and their family, and that is what we are going to work towards, all of us together. There isn’t going to be any taking sides. So, you stop at the outset the idea that either somebody could have views about something, or that if they send some communication to me, I won’t pass it on to the other and that I can be swayed in some way. It’s all about making sure that everybody knows how mediation will work, the purpose of coming to mediation, and ensuring that they want to properly engage in mediation as well.

Sarah Higgins: Absolutely and how do you help clients prepare for their first meeting? What should they expect?

Shona Alexander: So first, when they are going to come along, you must have the whole discussion with them. So, you have a call with them, you set up, you explain what mediation is about, and you go through the whole idea of having the screening. So, you check that the parties are suitable for mediation and there aren’t issues that would stop them from being, such as domestic abuse which you will have to deal with. So, sometimes it does come down to a judgment call, as to whether you think it is going to work. Then you send out the agreement to mediate, the mediation referral form, and then of course we have to go through the conflict checks and everything else, the old KYC that we have to do here all the time. So, we then say to them, how do they want mediation to work? And I strongly believe that I prefer in-person mediation.

Sarah Higgins: Do you? And how do clients find remote ones?

Shona Alexander: We’ve had to make it work, during COVID, we had to make it work. I think some clients like it, but I think that rather bizarrely in mediations, sometimes there needs to be silence, that moment where you just leave it for something that somebody has said to be taken on board by the other party. That’s harder in remote, and I think you often sometimes miss out on the interaction that there can be, remotely. There’s also the delay in remote mediation, there’s always that slight lag. So, I do feel that for me anyway, I prefer in-person mediation, but if it must be remote, then we can do it remotely.

Sarah Higgins: I think you’re right about the silence because sometimes if you have silence when you are doing something remotely, you think that somebody’s internet has gone down, rather than reflecting or having the chance to say something. That’s quite hard.

Shona Alexander: Well, I’ve had that in one mediation, where one of the parties and I carried on talking and we thought that the other person was just taking it all on board, and then we suddenly realised that, no, they had frozen, and we realised it had all gone wrong. But I think that given COVID, we have all got better with the internet and having to do remote mediation if required.

Sarah Higgins: No, I’m sure that’s right.