A post about selecting the right mediator for the right job
On 3 December 2014 I reposted Rachel Rothwell’s insightful article ‘Do Barristers and Mediation Mix‘. Rachel’s focus was whether bringing barristers to support their client at a mediation was a good idea or not.
Interestingly, this week I received the first comment on my post, just under ten years after initial publication. This was from Connie. She raised a slightly different point, but one which I am happy to explore, for it signals three important matters when it comes to the question of having a barrister as a mediator. Does a career fighting cases equip barristers to be facilitators? How do we deal with inevitable bias? And importantly, are mediators adequately regulated?
CONNIE says:
I was the subject of a workplace mediation where I felt the mediator was very much on the side of my employer. After the mediation I researched the mediator who is a Senior Barrister with a mediation qualification. I discovered a distinct conflict of interest and so reported it to the Legal Services Regulatory authority who astonishingly advised my complaint was inadmissible as this person was acting as a mediator and not a barrister on the day! – How convenient…. So where do I go with this?? There’s no regulation of mediation that I can find – again convenient! So if he, i.e. the mediator wore a bus drivers hat on the day would he be a bus driver?
MY REPLY was:
Connie’s comment is really important. It poses three primary questions in an excellent way: how are mediators to be selected; do they have the high level of intuition and trust in the mediation process to allow it to work; and who checks up on their performance.
For the mediator, mediation is not so much a process but an art. The mediator should leave themselves behind at the outset. They are the accompanist not the players. They support rather than steer. They gently propose rather than direct. They should be continuously alert to their own bias, and park it. It sounds to me that Connie’s mediator failed here, for even if on the day he was impartial, that Connie did not sense his impartiality is of itself a failure of his professionalism.
Which brings us on to selection. Although whilst practicing I was a member of two appointing bodies, I am not a fan of having a mediator appointed by a third party. I prefer a situation in which the parties have a brief chat with several mediators before appointment (the audition), and each agree on the one that has demonstrated their sensitivity to all sides of the dispute. It can be done, and solicitors would be well advised to put together a panel from which a choice can be made, rather than keeping a ‘pet mediator’.
Lastly, who regulates them? Every mediator should be a member of a professional body that prescribes their authority to practice. It is not enough that a mediator is accredited – they need to be a member of a regulatory organisation, e.g. CEDR or Chartered Institute of Arbitrators. I suspect that this mediating barrister simply had undertaken mediation training and was not regulated by a mediation specialist.
What should Connie do? I would go back to the people, body or firm that proposed the barrister as a mediator, furnish them with evidence of the conflict of interest, and ask them what they proposed to do about it. Another approach would be to contact the Bar Standards Board and discuss the issue with them.
Of course Connie should bear in mind that objectivity, impartiality and bias are simple concepts that involve complex undercurrents. It may be found that the conflict of interest contended was in fact no conflict, but a failure to communicate. Either way, it was the mediator’s duty to demonstrate their impartiality at the outset, so as to avoid any subsequent dissatisfaction and loss of confidence in the process.
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