When I started on my mediation journey, I did so on the basis that I wanted to help parties come to arrangements for their children, resolve financial settlements between themselves without having to incur costs, and mitigate the upset and animosity that court proceedings inevitably led to.
I accept that mediation does not always resolve matters and there will be cases that will need the assistance of the court, but even if mediation does not resolve all issues, it can significantly assist the participants in narrowing differences between them and at least open the channels of communication.
In my six years of mediation practice, what I have discovered is that very often parties have similar views or are approaching matters in a similar way, but the breakdown of the relationship and the level of mistrust has meant that they simply do not hear what the other is saying. Lawyers, myself included, tend to focus on all the points that are wrong with the other side’s arguments and how we can attack that deemed weakness. Mediation’s approach is to encourage both participants to listen to the other and focus on points of commonality and what they want to achieve overall rather than all the points they disagree on.
I have recently been recommended in the Chambers and Partners directory for my advocacy skills and have reflected on why this may be. I have been advocating in court for over 20 years so why now? What’s changed?. I do not doubt that my continuous training and practice as a mediator has developed my advocacy skills and my overall skills as a lawyer. I now consciously try to go into a hearing considering both parties’ points of view, and the common ground that they are both trying to achieve rather than fixating on the gulf between them. I encourage my clients to consider the other party’s position and why they may feel like that, to think what the future would look like for their children if parents were not amicable.
I also question, why there is not more focus on using mediation alongside court proceedings. Although I have seen a small increase in mediation over the two years where participants are in between court hearings but given court backlogs, it is not at the level one would assume. Mediation could help narrow the issues of dispute, thus allowing lawyers to focus the time, and parties’ costs, on what needs to be resolved. Lawyers need to understand that mediation is a tool to help them and their clients.
I am not naive to believe this approach will work in all matters. There will always be those cases where court intervention is necessary. But I do wonder if all lawyers had training in mediation skills and made a conscious effort when advising and representing a party to focus on common ground rather than the gulf between them, whether we would see fewer cases in court and certainly those that are in court (which are inevitable) with shorter timescales and hearing times. I certainly believe we would
For more information
If you would like to discuss mediation within the legal industry further, please contact Chris Lloyd-Smith.
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