Posted on 18th January 2022
A number of alternative ways of deciding these disputes have arisen, collectively called Alternative Dispute Resolution. These include Arbitration, where the disputing parties appoint a lawyer or other suitably qualified individual to act as their own “judge” to decide the matter, and Mediation.
There are two forms of Mediation, evaluative and facilitative. “Evaluative” requires the Mediator to act as a Judge and to chose what evidence s(he) accepts and to give their opinion as to the terms on which the dispute should be settled. That is not the form offered by Paul Dodgson
“Facilitative” is where the Mediator is not attempting to decide the case but instead to help the participants understand their own interests and that of the other party and with discussion and listening to each other they will, hopefully, arrive at a solution that is acceptable to them all. The starting point often will be to ask each participant to indicate in the other party’s presence what they would like to achieve from the Mediation process and in that way help the understanding of all as to the matters that may be relevant to reaching an acceptable agreement.
One example of where a Facilitative Mediation process could have been usefully employed is the often cited story of a parent, two children and one orange, quoted in the book “Practical Mediation” by Jonathan Dingle and John Sephton.
A parent comes into the kitchen to find his two children arguing over who is to have the final orange in the fruit bowl. He doesn’t bother to ask the details of the argument or why it is so important to one or both of them but takes a knife and cuts it into two. A fair result? Yes, but….
One child takes off the peel and throws it in the bin before eating the fruit. The other also takes the peel off his half but he then throws away the fruit and uses the peel to flavour the cake he is baking. If only the father had found out more then the dispute could have been solved amicably and with a better result for both children.
The Mediator is not there to decide the case, but to encourage the parties to explain their position and also to try and put themselves in the other parties place and try and understand the other side of the dispute. Understanding it is not the same as agreeing with it, but in this way discussion is encouraged and , hopefully all will see that there are other points of view which need to be considered and discussed and possibly other solutions as well.
How does it end? That’s totally up to the parties. The aim is to reach an agreement which settles the dispute in a way which is acceptable to both parties, and a signed document setting out the terms of the settlement is produced. Mediations have a very high success rate but if either party declines to reach an agreement then the Mediation has not produced a result for that day. Of course there’s nothing to stop the parties deciding to try again on another day. That’s the advantage of the process-provided all parties agree it can be run however they want!