What I learnt from shadowing a mediator

‘Tell me and I forget. Teach me and I may remember. Involve me and I learn.’

This Benjamin Franklin quote is one of my favourites. So you can imagine my excitement when I had the chance to live it through an opportunity to observe a mediation facilitated by Rebecca Clark. The parties and their legal representatives were kind enough to allow me to observe the same and Rebecca was an absolute star in involving me in the process. I learned a lot from the experience of shadowing Rebecca, which I thought it worth sharing.

There is no limit on how creative the parties can get in resolving the matter provided they are willing to truly engage in the process. While some lawyers and parties prefer to proceed to litigation or arbitration without engaging in mediation should a dispute arise, the value it brings to the dispute resolution process should cause us to rethink our approach. It should not be seen as a tool to merely avoid litigation or arbitration but as an integral part of the dispute resolution process that facilitates creative and endless solutions within the control of the parties. Mediation allows parties the opportunity to better manage the risks of their cases, costs, time and relationships as well as determine how the matter is resolved.

The point of mediation is not to have a perfect agreement but an agreement that either party can live with. Aiming for a perfect agreement results in a lack of will to resolve the matter.

Mediation is not about avoiding the disagreement between the parties but helping them work through it to possibly reach a resolution. While a compromise or resolution of the matter is the ultimate goal, disagreements form the basis for the assessment of risks. This presents parties with an opportunity to appreciate each other’s positions, enabling them to make resolutions they can live with. Insisting on compromises without working through this process may lead to parties feeling that they have given up more than they can live with, which then makes them averse to any future mediation.

Discussions will be more fruitful where parties have a rationale for the positions they present as opposed to where they expect each other to simply agree to positions or make some compromise so as to move forward. Negotiate in a well-reasoned manner. Merely presenting positions or numbers may lead to a situation where the other party perceives this as unreasonableness and a lack of willingness to truly engage in the mediation. This may result in the perceived unreasonableness being reciprocated, leading to lack of resolution. Sharing rationales is absolutely important to allow each other to work through the process and possibly get to a solution.

While well-reasoned positions are necessary, the parties must have the flexibility to make concessions so as to find a solution workable for all involved. Remember, the agreement does not have to be perfect but one that the parties can live with.

Parties and their lawyers will have respect for, and an appreciation of, each other where they engage in the mediation respectfully and in good faith even where a settlement is not reached. If the matter is already in Court, it may not help to use the strength of one’s case as a negotiating point as this will not necessarily reflect a sincerity of intention to find a solution workable for all parties involved.

Proper facilitation of the mediation process requires mediators to maintain their composure even where parties or their lawyers are being unreasonable.

The mediator’s control is limited to facilitating the mediation process so they can only do their best. It is important to note that sometimes an agreement will not be reached even where the mediator does their best. Whether the parties reach a settlement or not is really dependent on their will to resolve the matter; they make the decisions. Mediators must however inform disputing parties that a failed mediation does not necessarily close the door to an amicable resolution of the matter as parties may feel differently a few days or sometime after the mediation.

Grace is an Associate Partner at AB & David Zambia, a part of the AB & David Africa Group. She heads the Dispute Resolution & Employment practice group of her firm and is also part of the Corporate & Finance and Energy, Infrastructure & PPPs practice groups. She has been recognised as a Rising Star Corporate and M&A, Project Development in the IFLR 1000 31st Edition.
Grace is passionate about non-litigious dispute resolution and is an avid champion of facilitating party driven and out of court resolution of disputes. She believes, in particular, that mediation is an effective tool for assisting parties craft more mutually beneficial solutions and should therefore be advanced by lawyers as a forum of first resort in contentious matters.