A senior commercial litigator who had just completed five days of civil mediation training in BC commented: "That didn't look at all like what I have experienced in mediation!"
With a little probing, he expanded on the disconnect that he experienced as follows:
| Attribute | Training Model | Commercial Mediation Model |
| Mediator selection | Process expertise | Subject matter expertise |
| Pre-mediation preparation | Detailed separate meetings between mediator and each party and counsel, if any, to discuss underlying interests, goals | Little or no interaction with the mediator prior to mediation. Possibly some exchange of mediation briefs (similar to court submissions) |
| Mediation | Emphasis on joint meetings with some strategic caucusing | Emphasis on separate meetings with mediator acting as purveyor of messages and offers |
In BC, the training model focuses on an “interest-based” or “facilitative” approach. While it remains the primary framework for mediation in many areas (including parenting mediation, child protection mediation and other types of "family" mediation, mediation of employment disputes and some estate mediation), the commercial model is predominant in other areas including commercial mediation, motor vehicle personal injury mediation, construction mediation, and labour mediation.
Is this anything to worry about? Maybe.
The mediation umbrella is large enough to support a wide variety of different models and styles. In fact, it is a healthy approach to have various options to match the process to the situation and the unique needs of the parties. Also, commercial mediators will likely say that their model is what their clients (primarily lawyers) want, that it is working and that ‘if it ain’t broke, don’t fix it’!
However, some commentators have raised concerns that the commercial mediation model is designed to serve the interests of lawyers more than parties and fails to claim the full potential of mediation as it was originally envisioned. In a detailed article published in 2008 entitled "Moving Mediation Back Toward Its Historic Roots – Suggested Changes", Colorado lawyer and mediator Joseph P. McMahon, Jr. coined the term "low-functioning mediation" to describe this model.
Before the commercial mediators and counsel stop reading and click on the “delete” key, I ask them to consider the possibility that Mr. McMahon isn't making judgments about which method is "right" or "wrong" but, rather, is trying to say that the full potential and power of mediation is not being engaged in the commercial model. In his view, (using my own analogy) the model is like using my new iPad2 just to take notes at a meeting, when it is capable of so much more!
In the article, McMahon traces the history of mediation in the US and notes that, over the years, the market norm became the settlement conference and that “responding to the demand of the market, parties or their lawyers seemed to prefer mediation that isolates the parties, with the mediator shuttling offers and counteroffers between them”. Sound familiar? I suspect that it does, at least for many Canadian commercial and personal injury mediations.
He describes the fork in the road that developed between "dialogue-based" and "separation-based" methods and argues that although litigation is founded on separateness, mediation can take a different approach, even in a dispute which is already in litigation. He promotes incorporating more genuine dialogue between the parties than is present in the “shuttle diplomacy” approach. His website says:
Perhaps the core question for parties in mediation is: Do you want to engage in a real conversation about resolving this dispute? Alternatively, do you want to debate and then lob offers and counteroffers back and forth? I work with the former.
McMahon’s analysis reminded me that it is important to look at this issue from the perspective of the parties and not just their lawyers. The need for this "client-centred" view was also highlighted by Riskin and Welsh in their 2008 article entitled “Is that All There is? The ‘Problem’ in Court-Oriented Mediation”. They say:
In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and other ordinary civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues predominate; other potential issues – personal, psychological, relational, communitarian – disappear.
It is probably no accident that the commercial model looks very similar to a settlement conference. That is what lawyers are familiar with and it emphasizes their role and power in the process. Bryan Clarke, a UK commercial lawyer and educator states, somewhat cynically, in his recent blog posting:
It should also be noted that lawyers have a track record of capturing ‘alternatives’ to ensure their continued role within them as they develop, adding to complexity and cost in the process. Arbitration anyone?
While the current commercial mediation model may be meeting the needs of the repeat players and lawyers, what about the needs of the parties themselves – the one-shot players?
If we want to be "client centred" and if we are serious about trying to match the needs of the situation to the appropriate process, then shouldn’t mediators be aware of, and skilled in, the broad spectrum of different processes and be flexible in applying the more appropriate one(s)? In a future post I would like to explore how the commercial mediation model might be “tweaked” to unlock the full potential of mediation
Now take that iPad2 out for a test run!
Comments would be welcomed.
