It is so easy to fall into set ways of thinking about jobs. Mediators perhaps tend to think that unless they are mediating, they are not on the job. Recently I have had several rather different jobs to do, and have also been reflecting on the differences between and advantages of joint settlement meetings and mediations, and also on the merits of mediations without private meetings. It struck me that there are many more places for the skilled neutral to operate than simply at a “pure” mediation, something which remains under-realised and under-valued by both mediators and the commercial and non-commercial business sectors alike.

A keen proponent of consensual approaches to resolution of clinical negligence claims once said to me that he valued the presence of a neutral who could relieve him and his opponent of worries about process, so that they could concentrate on what really matters to them, namely the content of the dispute. I have always worried that joint settlement meetings would suffer from the absence of someone with the responsibility to chair them. Without an identified person to suggest starting the meeting and to propose who speaks first and second, and then suggests what to do next, all the time attending to questions of balance in participation by each person or team involved and to suggest other ground rules, there must a big risk of a free-for-all. Meetings can so easily lack direction or purpose that for there to be a skilled person chairing it, preferably who does not need to espouse one or other side in the issues being discussed, must be sensible. Mediators know too from having chaired many opening joint meetings within the formal mediation process that it is remarkable how good chairing minimises grandstanding and power plays. My own experience is that participants in mediation joint meetings are on the whole courteous, have learned that the effectiveness of what they say comes from being directed in a respectful manner to the decision-maker in the opposite team, and that displays of anger, pomposity, dismissiveness and insensitivity are pretty counter-productive. I believe that the presence of a neutral chair who might indicate sensitivity over keeping any such attempted display under control contributes importantly to a civilised atmosphere in which useful communication is made possible.

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by Tony Allen

Tony Allen is a Solicitor, Direct Mediator and Senior Consultant for The Centre for Effective Dispute Resolution (CEDR).