Published by laurence nicholson in Opinion · 30 June 2022
Tags: #mediation, #ADR, #mediators
Tags: #mediation, #ADR, #mediators
Determining whether either subject matter experience or legal qualification, or both, is better or not in the mediation process, is not a binary outcome. Like many things, it does depend on a number of factors, all of which will be unique to each situation. In this article, some of the potential benefits and drawbacks to having specialist subject matter expertise and a legal qualification will be considered.
Whether a mediator has specialist knowledge and experience within the subject matter of the dispute, in reality it can be a double-edged sword.
For the parties involved, they might feel a level of comfort, or trust, if they know the mediator has expert knowledge in the specific area or industry, because this might translate in their minds to a belief that a technical appreciation of their argument will sway the position and subsequent behaviour and communication of the mediator to favour their cause over the other party or parties.
What this highlights though, is a lack of understanding of the role of the mediator in facilitated mediation, because there are definite upsides and downsides to understanding at a deep technical level, the arguments of the dispute.
The first upside is that long explanations of the minutiae behind the dispute, are avoided. This can facilitate a faster journey to some form of agreement; however, this might not be a good thing. Just understanding and focussing on technical detail, is rarely enough to address the many dimensions behind a dispute, and as a downside, is more likely to lead to poor or broken relationships between the parties at best, and to breach of settlement agreement at worst, because a significant part of any dispute revolves around personal aspects of the individuals involved, and their behaviours, driven by emotional stimuli, none of which are addressed or sufficiently considered when only technical details are applied.
The perceived upside of higher trust in the mediator by the parties, has a psychological downside for all involved, in that for the mediator, they are unable to offer any advice or guidance directly in the decision making process, which can be frustrating, but more importantly could potentially lead to unintended confidentiality and impartiality breaches, especially for any parties experienced in reading body language and facial expressions accurately, because any internal thoughts of the mediator in relation to validity of technical statements, likelihood of success of argument, or acceptance of position statements by the other party or parties, will be hard, if not impossible, to suppress, and will be read and interpreted by those able to do so, potentially giving away your view of their case or the position of the other party.
Were this to be an arbitration, or even become a mediation-turned-arbitration (MedArb), where a decision is requested after failing to reach a mediated settlement, using the same individual as both mediator and arbitrator, the specialist subject matter knowledge would become valuable, however in the mediation stages, where having no involvement or influence over the decision making is paramount, it can be a hindrance and even a form of bias, albeit an unconscious one.
When it comes to considering the importance of legal competence, or qualifications, of the mediator, it is still not an entirely binary ‘yes or no’. It is important also, here, to distinguish between an academic grounding in law, and being legally qualified which suggest a solicitor or barrister.
The ability of a mediator to establish an effective trusting relationship with each of the parties can be affected by how they view the mediator, the type of dispute, the type of party and the experiences of the parties so far in the legal process they have embarked upon, as they might just see them as yet another ‘lawyer’ dictating their actions.
Again, as with the question of whether specialist subject matter knowledge and experience is better or not, it is likely each party has formed a view of the likelihood of litigation success and the strength of their legal position, based predominantly on the communications they have had with their legal teams. Like before, it is easy to be cynical, with regards the interests of the solicitors and other legal counsel, to see a dispute go to litigation.
The knowledge that the mediator is legally qualified, could be used by the parties to test or validate their belief in the strengths of their position, and in some cases frustrate the process by pressuring the mediator to give some view or personal belief of the legal viability of their case, which could easily create a situation where a party decides to leave the mediation early, because they don’t understand the real risks of litigation fully, or because they interpret the mediator’s reactions or behaviours, as a legally qualified individual, as additional validation they will win in court.
Of course, this again is driven by a fundamental misunderstanding of how facilitative mediation works, and a good mediator will resist any pressure to offer any opinion or get involved in the parties’ decision making process, however, as before, there are likely to be significant clues in the unconscious body language and facial reactions of the mediator, in relation to their internal dialogue of the merits from a judicial perspective of the details, that a trained observer could pick up on. This could, unbeknown to the mediator, give information to one party, indicating the position and thinking of the other party, thus interfering with the impartiality and confidentiality of the mediator, that could be hugely problematic at a future date, should this be claimed later in a breach of settlement agreement scenario.
Of course, knowledge of how a court might typically view a party’s position can be useful to a mediator, in that they can use it to recognise when to use challenging questioning, and reflective positioning with a party to test how realistic any potential offer might be, and how it might be viewed by the other party, before any potentially insulting offer is requested to be made to the other party, which could undo much of the trust built up in the process, and reignite previously dampened emotions, reversing much of the progress made to that point in the mediation.
Whilst it is possible for a legal professional to understand the pitfalls of having such training, and be aware enough to understand how to use this in the facilitative process affectively, it is almost impossible to prevent unconscious body-language and facial expressions from being exhibited, due to the nature of their origin in a part of the brain which is largely ungoverned by thought management processes, and so being leaked and read by a trained observer, thereby giving away information which might prejudice the mediation outcome.
To conclude, this does not have a binary response, and very much depends on the complex dynamics of the situation, context of the dispute, parties involved, skills of the individuals within the mediation process, and the effectiveness of the relationship created between the mediator and the parties.
When considering the the process is a facilitative one, with the mediator controlling only the process, without engaging in any part of the decision making of the parties, having specialist knowledge does not seem to benefit the parties, other than potentially reduce explanation time. One could question whether specialist knowledge should play any part in the mediation process, as it would in an arbitration or court setting, and so would be beneficial at all?
In the same way, having some insight into the likely legal position and strength of case, and any likely court decision, does not offer any benefit to the parties, nor for the most part, the mediator who cannot impart this information at any stage of the mediation anyway, but who could only potentially use it to determine where some challenge might be useful, in order to avoid undoing a significant amount of hard work through failing to see where suitable encouragement might be given to consider how realistic any offer might be when made to the other party or parties, which might lead to a resurgence of emotion and mistrust between the parties and in the process, and this could ultimately lead to a failure to reach a mediated settlement agreement. In this situation, it might result in the parties leaving to face a lengthy and costly litigation process, where any control they had has been relinquished.
On balance, I feel the answer is no in the most part, with any upsides to the mediator having either specialist knowledge of the subject matter of the dispute, or being legally qualified, or indeed both, being outweighed by the downsides.
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30 Jun 2022
A great insightful consideration of the pros and cons of the expertise of the Mediator. Definitely worth taking the time to read!