There are many sound reasons why people request or indeed are instructed to seek mediation before going to court or tribunal. A good facilitative mediator, however, should be able to help nip issues in the bud on some occasions, before going to mediation.
Often there are heartfelt emotions and strong-held opinions surrounding an issue, which can sometimes result in animosity towards other participants. This ill feeling makes useful communication difficult, if not impossible. This is the point where a mediator can make a positive contribution.
In one respect, a mediator starts off as a go-between. After someone involved in the dispute (or their legal representative) contacts the mediator to request a mediation, the mediator will then write to all participants. In some cases, the other participant(s) involved in the issue may be unaware that a mediation request has been actioned, so the mediator will first write to everyone involved to ascertain whether all participants wish to proceed, as mediation is a voluntary process. After the mediation is confirmed, detailed letters will be sent to all participants explaining the mediation process.
Occasionally, the initial letter from the mediator acts as a ‘wake-up call’ and a catalyst to get the parties talking directly. In some instances, this results in an agreement being reached without the need for a mediation. While this doesn’t happen with all disputes, opening the lines of communication between participants is essential, if there is any hope of reaching a resolution.
Case Study A
One dispute I was involved with concerned the heights of property boundary hedges. You may wonder how something so seemingly simple could cause such conflict, but I see it time and time again. I was contacted by one property owner, who wished to go to mediation before things escalated. The letter I then sent to everyone involved made one or more participants aware that the hedge height was of great concern to the person who contacted me. The letter prompted all participants to start talking directly, resulting in a mutually agreeable resolution – without the need for a mediation.
Case Study B
I was involved in a complex mediation involving directors and shareholders of a company, where one director/shareholder wanted another director/shareholder removed and offered to buy him/her out. This is simplifying the situation, but the point is that an agreement wasn’t reached during the first day-long mediation. When a second mediation was suggested some weeks later, all participants decided to get together and agree a way forward without the need for a second session.
When emotions run high during a dispute that make it difficult for people to sit down together and discuss a logical way forward on their own, mediation brings the participants together in a neutral, non-judgemental environment. It has a way of getting to the core of a conflict, which may or may not be the issue that was used as the reason for wanting a mediation.