Who’s Who Legal brings together Martin Brink from Van Benthem & Keulen and John Sturrock QC from Core Solutions Group to discuss recent developments in the market, the changing nature of cases and the future of mediation.

What factors do you consider make a successful mediator?

Martin Brink: A successful mediator – as has been shown from ample research in the USA – is someone who can gain rapport with the parties. Being able to gain and maintain the trust of both parties is the key issue. This requires skill, but also call it the “P-word”: personality. Of course solid training and knowledge of mediation theory are essential, but in my opinion in mediation it all comes down to respecting and observing the key values of mediation. Autonomy of the parties, as well as voluntariness of participation, neutrality of the mediator, confidentiality and the freedom to end the mediation if one is not happy with the way it is going, are such key values. A mediator who respects and observes those key values is likely to be succesful because then not much can go wrong. By and large it is the personality traits that will make the difference. Not being faint-hearted, daring to allow parties to show their emotions, patience, perseverance and humour are some of those traits.

What challenges lie ahead in promoting the use of mediation? What opportunities are there for expanding the use of mediation in years ahead?

Mediation has suffered from overly enthusiastic expectations. Disappointment is an element of expectation. It is still a young profession. It is best compared with organic food products: for the first few years they were not a success, and considered part of a sort of subculture; but once people started to realise that organic food is beneficial to one’s own health, things took off. Now every shelf in every store is packed with organic or healthy products. This will happen with mediation. Research shows that once parties have gained experience with mediation, they declare that they will use it again next time. There are vast opportunities for expansion of mediation, but it will not necessarily mean that mediators will get more work. Mediation skills will by and large become household skills in many institutions, governmental and other, and so make people deal with conflicts differently. Still, for mediators who will seek a recognisable market position on the basis of substance-matter expertise, branch knowlegde and other unique selling points, there will be more than enough to do.

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