6 Advantages and disadvantages of mediation
As with other forms of ADR, there are advantages and disadvantages to mediation. Some of these are outlined in the table below.
Table 3 Advantages and disadvantages of mediation
| Advantages | Disadvantages |
|---|---|
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(Adapted from Drummond, 2013)
Activity 5 Mediation in practise
Timing: Allow 10 minutes
How does the process of mediation described in the video below match what you have experienced or seen in action?
Download this video clip.Video player: pwc_5_a5_michael_doherty_new.mp4
Transcript
MICHAEL DOHERTY
My name is Michael Doherty, and I work for an organization called Mediate NI, based in Derry, Londonderry.
Well, alternative dispute resolution takes many forms, but I think what we really means is an alternative to the court process, where people do not have to go to court if they can find another way of settling the dispute. So mediation is a third-party intervention in a dispute to help parties reach some agreement. It's completely safe, it's confidential, it's quick, and it's managed by an impartial mediator.
Well, our office will have an intake officer, which means that somebody rings in from the outside looking for a mediation service. And what happens is it's passed on to one of the mediators, and the mediator does what we would call "pre-case development work." That is, the mediator meets with the people separately to initiate the mediation process, and that is to give them an understanding of what the role of the mediator would be. But they are aware of this and a clear understanding that it's confidential, it's safe, and it's a lot quicker than a formal court process.
And what happens is then it goes through six stages once the parties agree to mediate at the table. They sign what's called a "consent to mediate form." Even though that form is without prejudice, it means quite clearly the parties are consenting to mediate with each other with the mediator present. The mediator takes them through six states, which is called Introduction, which covers ground rules. It covers confidentiality aspect of it, and then allows people to speak freely without interruption for whatever time they need to outline their issues.
The second stage then is that people tell their story on whatever the issues that are keeping them apart. And once that happens, the mediator then frames those issues into what we would call an agenda that has common issues that they know that they need to get sorted out. We take an amount of time, and they all say nothing is agreed, until everything is agreed.
Then it moves onto from the agenda stage into the agreement stage. And the agreement will be written up, clearly understood, and follows what we would call an acronym called "SMART," that it's specific, it's measurable, it's achievable, it's realistic, and time bound. That means that everybody knows exactly what it is that they have agreed to. That is then signed up, and if it's needed, it has to be ratified by the respective solicitors, evidence at court proceedings. And that runs a mediation to an end and a closure.
Well, first of all, it's quicker, it's safe, it's confidential, and people are free to speak within the mediation process knowing that it is confidential. But most importantly of all, the key aspect is that the agreements that are reached are the disputing parties' own agreements.
So we would use what's called a facilitative model of mediation, where the mediator doesn't give any advice at all during the process. That helps the parties really look at the issues and see what's good for them and let them come up with their own agreement. And once that happens, they have ownership of the outcome.
Well, some of risks and downsides are people entering the process in bad faith, that they do it because possibly they had been asked to do it by a court and requested to do it by a court, which means that they go through the motions of going through mediation just because somebody else asked them. That's a big drawback whenever people enter in bad faith.
The other drawback is they never really wanted to get an agreement anyhow. They wanted somebody else to make the outcome for them, make a decision for them so they can blame somebody else rather than them making the decision. That's another downfall.
But I think that the benefits outweigh the downfalls. When people enter it in good faith, then it makes it a lot easier. Where people have a willingness to get it sorted out, they usually sort it out. But my practice has been very clear. If I discover that people are entered-- have entered in bad faith, then I would stop a mediation immediately and not allow it to go any further.
The other part about it is that people enter mediation process in a fixed position. That is that they do not intend to move from their fixed position. So there's no benefit in getting into a mediation if it's not going to be a compromise somewhere along the line. There needs to be a give and take in the mediation process. Not everybody gets what they want, but everybody gets sufficient enough to satisfy themselves that was the outcome. I think that's a major benefit rather than a downfall.
Well, be very clear when you enter into the mediation process that the benefits for you are quite clear, that it's confidential. I think that's the main thing. The second part of it, it is voluntary. You do not have to enter into a mediation process even though a court may advise it and they ask you to go through mediation process. At this particular point in time, it would be a voluntary process whereby you have the right to go through a formal court process if you so wish.
So my advice to people would be very clear. Have a look at it, look at the benefits that are there. It's quicker, confidential. I keep saying that. And it's cost effective for yourself. But most of all, there are great benefits whenever you know that you have helped create your own outcome with the aid of the mediator.
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Video 2 Michael Doherty
What steps might you take in order to enhance your own skills as a mediator?
Discussion
As is no doubt evident from the clip, being a mediator requires not just skill and expertise, but also significant sensitivity to the challenging circumstances people might be encountering. You may have seen mediation in action in various contexts, or perhaps even been involved in mediation yourself. If so, you will no doubt understand how challenging – but ultimately rewarding – the process can be both for the mediator and for those involved.
To enhance your own skills as a mediator it would be vital to undertake professionally delivered training, perhaps leading to an accreditation with a recognised body. While skills in mediation are very useful to have, given the various challenges mediators face, people undertaking mediation should always be taken to work within the limits of their experience and expertise.