Tue 11 Feb 2020

Vacant - The 6 key aspects of Mediation

At this year's Burn's Supper (25 January 2020), I found myself not only celebrating the birth of Scotland's national bard, but also at an awards ceremony celebrating our team being placed .

Having been selected as a Legal Diploma student to be part of the University of Edinburgh Law School's team, Anna Bruce, Rebeca Stafford and I, went to the University of Glasgow to compete with teams from around 20 UK Law Schools.  

Following our crash mediation coaching sessions, internal heats in the weeks prior to competition day and our success at the competition, I reflect on what I have learned about the mediation process in this short time.

The competition was designed to assess our ability to co-mediate for two parties with a dispute to move the process forward. We had to display a range of skills mediators possess:

  • people management such as building trust and rapport through empathy;
  • the ability to strategise and manage the process;
  • time keeping;
  • good use of open and closed questioning;
  • the ability to identify the relevant issues, common interests and summarise succinctly; and
  • the ability to react and think quickly on your feet to a live situation.

We felt it was important to mention to the parties that to move the process forward there must be some movement on both sides. The process allowed participants to keep an open mind to the dialogue between them, and to place themselves in each other’s shoes to consider each other's perspective.

As part of the process, we had to make use of both private or caucus sessions and joint or conference sessions with the parties. During the private sessions, at times confidential information was shared. It was hugely important that we did not breach confidentiality when speaking with the other party. One thing we found challenging was ensuring we had given an equal share of time to each party during the private sessions. However, where more time was required by one party if they were more aggrieved or had multiple issues to work through, we felt it helped to sign post this to the other party to ensure transparency and allow them the opportunity to comment.

From our understanding, to see progress it was about getting the right balance between the competing interests, managing the parties' emotions and ultimately separating the people from the problem. We were also alert to the 'low hanging fruit' and easy wins where we saw their needs overlapping, which helped to show the parties that they are making progress together.

The ultimate hope was to align needs and come to an agreement where agreement could be made, but both parties had to have contributed to and been satisfied with the agreement. We felt success was achieved even where we saw progression in the situation, especially since we were only given seventy-five mins per mediation session.

Overall, although the competition was challenging, I really had fun doing it. I also enjoyed getting to know the other law students and explaining to them Scotland's tradition of Burn's Supper as they witnessed for the first time the Haggis being piped in and the 'Address to a Haggis'.

Finally, a key bit of learning which stuck with me and I would like to share is the mnemonic VACANT, highlighting six key aspects of mediation:

  • V - Voluntary

Mediation is a voluntary process in that the parties must decide by active choice that they want to participate in the process. As it is voluntary, parties are free to change their mind, but once engaged in the process they may be committed to seeing it through.

  • A - Agreement to Mediate 

Before mediation can take place, the mediator should arrange for a copy of the Agreement to Mediate to be signed by all participants. This is important as it sets out the term and conditions under which the mediation will proceed. The Agreement to Mediate covers the aspects of mediation covered here as well as what has been agreed for payment for the mediation.

  • C - Confidentiality

Parties agree that mediation is entirely private and confidential. This is one of the major benefits of mediation. Only the participants are privy to the information shared at the mediation. What this means is that they can openly share information and put forward a proposal or offer without prejudicing their positions

  • A - Authority to Negotiate

The participants that are party to the mediation must have the authority to negotiate and ultimately have the power to enter in to a binding settlement agreement.

  • N - Neutral / Non-Binding  

The mediator is neutral or impartial and independent. The mediator does not take sides, nor does he/she judge or express a view on the information forthcoming as part of the mediation. The mediator is a facilitator of the process and to the participants in problem-solving collaboratively.

The process of mediation is a non-binding one and only becomes binding upon a consensus being reached and the parties becoming party to a settlement agreement.

  • T - Timing

Mediations can take a few hours up to a full day. However, they can take more than a day depending on the complexity and the length of time the dispute in question has been on going.

For anyone who has a dispute and is considering mediation and wants to discuss their options or find out more information, please do not hesitate to get in touch with David Hossack, an accredited and practising mediator in Morton Fraser.

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