Being a lawyer and an academic who has just moved to Luxembourg to continue my research in the field of mediation, I now have an amazing opportunity to … talk to people. Or, to be more precise, I can spend time talking to other academics and lawyers doing their research in the field of procedural law.
I have to admit, after hearing what my PhD dissertation is about, they all tend to react very supportively, saying that mediation is an innovative area and a very positive supplement to the ordinary way of resolving disputes (I do have a lot to say about mediation being an alternative method of dispute resolution, but let’s leave that to another post!). However, almost all of them extend their sentence with a ‘but’, followed by different kinds or reasons why they have troubles putting full trust in the process. Denied access to justice, confidentiality issues, possible corruption, lack of judicial control over the settlement agreement, just to name a few arguments from what I’ve heard.
I don’t really know what it is – me having read so much about it or me seeing the process and, most importantly, the outcome of mediation, that urges me to spend my time and effort to at least try to scatter that mist surrounding mediation in lawyers’ eyes.
When we start talking we usually (of course, not always) agree that there are ways to guarantee the right to justice even if mediation is mandatory; that even in cases where after unsuccessful mediation parties still go to court it is possible to invoke a confidentiality clause and that the majority of sensitive information is revealed to the mediator, not the other party; that mediators have a significantly smaller influence on the outcome of the dispute than national judges and arbitrators, thus corruption cannot be that powerful in mediation; that settlement agreement, as any other agreement, can be drafted by lawyers who are welcome to be present during mediation (in some jurisdictions it’s even compulsory). And I am not even starting on all the positive effects, we have all heard that.
So, what is it that cause all the mistrust: reasonable doubt or a case of xenophobia – fear of the unknown? I cannot say that mediation is perfect. It is not. Nothing is. Constructive criticism initiates positive change (regardless of how cliché it sounds) and this is why I am always willing to hear the criticism towards mediation – it indicates the areas where amendments might be necessary. However, in majority of cases the mistrust comes from not being familiar with the process, not knowing the safeguards in place or sometimes not knowing all the benefits that outweigh significantly the downsides of the process. And that’s for us to change it.
Take out message? Nothing new, honestly. Or at least nothing that hasn’t been published in a number of studies and reports on mediation prepared by EU Commission, Committees and Parliament. If we want to introduce people (lawyers included) to mediation, we have to inform them, or in the Commissions words, spread mediation culture. Yes, it might mean that we have to spend another half an hour of our precious time discussing about the benefits of mediation and ways to solve potential problems or threats if they arise. At least in my opinion, it’s worth it - not only because there might be one more lawyer offering his client to try mediation before going to the court, but also because talking to others, especially professionals, challenges you to be as up to date with all the recent developments as one possibly can.
One last thing just for reference. Fruitful discussion does not mean proving the counterparty wrong. Fruitful discussion involves lots of listening and appreciating different way of thinking. As mediators we should use our skills – identify the doubts and fears and target them patiently one by one. We might not change a person’s perspective (and I’m not saying that’s the goal), but, most importantly, we can be sure that their prejudice does not come from the absence of knowledge.