Mediation 2016: Discussion of Mediator Success
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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 successful 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.
John Sturrock QC: Ability to build rapport with parties quickly and effectively, and to show empathy with them while remaining impartial at all times. Being both approachable and robust while staying optimistic throughout the process. A combination of directness and rigour in getting to the heart of the issues, with a genuine respect, empathy and warmth for those involved. Being engaged and committed, and not afraid to give a steer to the negotiations. Having a good knowledge of background law can really help and also a good understanding of commercial factors – and a good commercial manner with parties. An ability to “read” a case and an ability to identify instinctively the right approach to handling the mediation. An ability to quickly focus on critical issues and to convey complex material in a simple manner, with skill in pulling together widely disparate threads and knowing when and how to take matters forward. Adaptability to fit the dynamic of the particular dispute and the style/personalities of the parties and their advisers. Awareness of the dynamics of the lawyer/client relationship and understanding of the pressures for advisers, particularly with a challenging client. Remaining in contact with parties after the mediation day to assist them in reaching an agreement if necessary.
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