As part of International Mediation Awareness Week this week, I look at the importance of party control in the context of mediation.
I first qualified as a mediator in 2001, but it was six years later at CEDR that I first started to mediate on a regular basis.
Since then I have reported several times that I consider the biggest advantages to a business of using mediation to resolve its disputes are that (a) mediation can help repair and maintain existing business relationships, allowing parties to continue to trade with important suppliers and customers and (b) it preserves confidentiality.
I have not changed my mind about the importance of both of these advantages. As a mediator I maintain that the part of mediation that makes me most satisfied is seeing the parties repair an old relationship that has gone sour and could have easily have led to ruination for them both. However, mediation is not about me, the mediator, it is about the parties, and I have recently begun to understand that for the parties themselves it has been discussions about control which have helped move them to a point of settlement more than any other factor.
“control of an organisation, place, or system is the power to make all important decisions about the way that it is run.” (The Collins Dictionary)
Detailed discussions about control often arise when the parties are at deadlock. This is because mediation is often, if not quite always, the final stage before litigation commences or is returned to if the mediation does not result in a settlement. As mediator, I will try different techniques to break deadlock and one of those techniques will be to discuss with the parties about how they will relinquish control of their dispute to others should they fail to break deadlock and move discussions forward.
People like to be in control of their own destiny and by highlighting the fact that they may lose control it often helps them move from a relatively minor sticking point to continue in the process.
James Tumbridge, a Hunt ADR Associate Mediator and Partner at Venner Shipley LLP, says:
Mediation is negotiation and as such you have a say in the outcome. This is the key difference to a judge hearing your argument and ruling for or against you. A judge doesn’t have flexibility to allow you to resolve other than in a binary way, so if you want to have some control on outcomes mediation could be for you.
What James says is 100% correct and I would go further, adding that it is before it gets to court that parties are at risk of losing control.
Rosie Compton, a fulltime mediator and also a Hunt ADR Associate Mediator, adds:
Proceeding to court takes the outcome completely out of your hands - worse odds than a bet on a horse at the Grand National! Focusing on legal or other 'principals' is not what a judge would be interested in. Consider the impact on you and your family's / company's well-being if an agreement was reached.
As Rosie says, don’t gamble with your money or your business or your family. Mediate if you can and mediate with your eyes wide open. This is your final chance to innovate and reach a solution on your terms. It is your final chance to avoid the expensive, time delayed binary decision-making process of the court. It is your final chance to keep control.