Mediation Marathon

I’ve just spent the first of six days training to be a family mediator. It’s been daunting but exciting, interesting but exhausting. Tomorrow the role play begins. It must be done. Eyes on the prize an’ all that. However, whilst not overbrimming with enthusiasm for role play, nor for losing my precious weekend to such masochism, I am enthusiastic about the skills I am learning, and to put them to use both in the context of mediation and in my court based work.




5 thoughts on “Mediation Marathon

  1. Role play – argh! but surely not daunting for a barrister? I’m interested in why members of the Bar would want to train as mediators. I know that lawyers in family law tend to negotiate constructively on behalf of their clients rather than indulge in ‘adversarialism red in tooth & claw’ (a Gwyn Davis observation I think) but what extra can be gained from a mediation course? Am I way out of date as thought you could act only for one party? Also, a feature of mediation is its delagalisation of disputes so does not seem to fit with the way a barrister would apply her expertise.

    • role playing someone with actual uncontrolled emotions – very challenging for us ice queens! But seriously, it’s really useful. I hadn’t fully appreciated the different dynamics of negotiation in court as compared to voluntary mediation, where the “broker” is impartial, notwithstanding the fact that we aren’t your traditional adversarial-only lawyers. I’m only half way through the course but I’d say that there are some really useful skills that I will take to client handling, and in particular to working as go between where I am representing one party and the other is a litigant in person. And of course the training is necessary in order for me to conduct mediations, as a quite separate role from my in court role. I think that the bar can offer information about the context in which couples resolve their disputes – about what is legally possible and what the alternatives are if agreement is not reached through this non-legal route – mediation doesn’t take place in a legal vacuum, or at least it ought not to do so if it is going to be lasting and effective.

  2. Here in NZ lawyer led mediation conferences have been part of the process for a couple of years.
    Generally they have been more effective than judge led mediation mainly because they are allocated more time than the previous formats and can take place outside of courts.
    As always there are occasional issues. I was part of one session where the mediator sensing there wasn’t going to be agreement, pushed hard and bullied one party – in my view his conduct at that point was in order to get a ‘notch on his belt’ as his website trumpeted a high percentage success rate.

  3. Ken, the number of times I’ve heard that about mediators wanting to get a ‘notch’ and then trumpeting their ‘success rate’ continues to emphasise to me the inappropriateness of lawyers mediating. Sure, if there’s no connection whatsoever with their role as lawyers then anyone can take on the role of mediator, but the whole ‘ethos’ of mediation is different to that of being a lawyer – even the idea of the mediator having ‘success’ is inappropriate as it’s not the mediator who creates a resolution, it is the parties. Only in environments where ‘performance’ is so much an important factor, as it seems to be for lawyers, would it be the case that a mediator bullied one party to get agreement. The two processes need to be entirely separated and no crossover between them as they are entirely different processes and inevitable conflicts of interest occur when lawyers try to be mediators while still maintaining an identity as lawyers. So many of such issues that arise in these situations do not occur in mediation arising from a community mediation background and ethos. The whole approach is different and committed to a client led outcome – whatever that may be.

    • Gosh Alan you do have a very negative and narrow view of lawyers, don’t you? Lawyers of the kind you describe (pretty few and far between in my experience) are unlikely to be attracted to mediation in the first place, surely?

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