Mediation & Conciliation - Solutionist Style!
Nature of Mediation & Conciliation
Excepting in statutory applications, there is little need to distinguish between Mediation and Conciliation. We are happy to accept appointments as conciliators, but in truth, unless the parties request something completely different to the norm (which we will be happy to supply if we can and if we believe it will work) the reality is that we can easily deliver conciliation services under the banner of our Directive Mediation (see below):
Mediation is a form of assisted, structured negotiation. The mediator manages and guides individuals, groups, organisations and businesses through a flexible, structured, four-stage negotiation process that helps them solve their dispute, or problem, constructively.
Standard mediation processes usually produce an agreement, or settlement, that the parties "can live with". It may not be great, but the pain is shared and the damage is minimised. These agreements are put in writing so they can become legally binding contracts between the parties.
The TSG mediation process goes considerably further than this, whenever it can. We don't just try to achieve constructive resolution , instead we actively seek to produce creative solutions.
We go beyond just helping parties to negotiate settlements based on compromising down to a position of shared pain. If there are other options that can be developed - options that may get the parties closer to a genuine "win-win" outcome - we will try to develop them. We can't do it all the time, but it's surprising just how often we can help achieve what appeared to be impossible - especially when family disputes and other long term relationships are involved.
Generally, voluntary mediations (where parties choose to mediate) have success rates of 70%-80%; compulsory mediations (eg: court-ordered) have success rates closer to 50%.
TSG, Dispute Solutions, and their direct ancestors, have consistently achieved successful outcomes in well over 90% of the many hundreds of mediations they have undertaken over the past 20 years.
Mediation is easily the most widely used dispute resolution process in Australia - mainly because it is so flexible and so effective. In skilled hands, Mediation treats and removes the causes of conflict, thereby repairing, or at least dignifying the damaged relationship that's at the heart of all disputes.
Contrast this with adversarial processes such as litigation, which can only deal with the symptoms of conflict. The difference is critical when long-term family, friendship or business relationships are involved.
Most Australian Courts and Tribunals now regard mediation as an important and efficient dispute resolution process. Indeed, it may be the ultimate irony that, after submitting to the stress and expense of preparing for trial, many courts require parties to try to resolve their dispute by mediation before they allow them to come to trial anyway!
The Mediation Process
The TSG mediation process can be adapted to suit almost any size or type of dispute, from non-financial family, family business and workplace conflicts to multi-million dollar commercial disputes.
TSG mediations are quick, practical, confidential and comprehensible. Parties are encouraged to participate in the process and they usually find this very empowering, because they gain ownership of the solution and of the process that gets them there.
There is a bewildering array of processes currently in use in the Australian marketplace - all being called "mediation". To help our clients understand what they are getting into, and without in anyway limiting our flexibility, we offer just two distinct styles of mediation:
- Facilitative Mediation and
- Directive Mediation.
Facilitative Mediation follows the "classic" mediation model. The mediator manages a negotiation process designed to help the parties to develop their own agreement.
The mediator does not express opinions, or give recommendations. Their role is to maintain order and to provide direction and momentum to the mediation.
We find this process rather too passive for TSG taste buds, although we find it a little easier to swallow in the Dispute Solutions camp - on the rare occasions this process is requested.
While we are always happy to facilitate, Solutionists prefer to roll up their sleeves and get involved in helping parties to develop creative solutions to solve their dispute. If the parties can do this well enough themselves, that's great and we'll keep out of their way as they do it. But, in our experience it's a rare group of disputants that doesn't need a bit of proactive assistance.
As stated, although this process is freely available, after we have explained their options to parties in dispute, it is rarely requested. Even when A Facilitative Mediation is specifically requested, the process almost always seems to get to the point where we are asked to increase our active involvement.
Directive Mediation is an altogether more robust and interactive process. The mediator uses their professional knowledge and experience proactively - to develop and express views and opinions, help to generate creative options and keep the pressure on the parties to move towards resolution.
In putting this all together the mediator will then guide (and sometimes nudge) the parties towards a solution, and thereby help to resolve their dispute.
Most of our mediators have substantial experience and credibility in the areas in which they mediate. When a dispute is being handled through TSG, it is understood that our mediators are being specifically engaged as Solutionist Mediators.
If parties want a slightly less creative process we may direct them to work through Dispute Solutions. If they want a much stiffer and more formal "legal substitution" process we may refer them to some of the very competent, non-Solutionist approved, lawyer mediators on our panel. Note that we've only had one request for this in the past 10 years!
The textbooks describe a variety of mediation process models, with different levels of complexity. Just as we try to keep things simple with our two types of mediation process, so we believe both processes have only four fundamental stages. The first two analyse the problem in the "here and now"; the second two develop and implement "go-forward" solutions:
| The "here and now" analysis: | The "go-forward" solution: |
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Mediation Process Stages
At the start of each new case we conduct an intake session to help both the parties and ourselves to decide which process, style and mediator are best suited to the matter at hand.
Our mediations often follow this path:
- Preliminary contact. This may be with one, some, or all of the parties. We see whether the basic "chemistry" is right, explain the process, identify information requirements and sources, identify required outcomes, establish timeframes and estimate likely costs.
- Preliminary contact with reluctant party(s). Sometimes, a party to a dispute is resistant to, or even oblivious of, the need to get the problem resolved. If necessary we make contact, provide explanations and get a preliminary commitment to, at the least, start a dialogue.
- Preliminary Planning Meeting. Used to establish trust in the mediator and commitment to the process. The parties define and confirm the problem that needs to be resolved, agree their respective information requirements, set the style for the mediation process, agree timeframes etc. Usually, we involve all the parties in the process from the outset. However, where levels of emotion, aggression or insecurity are very high (eg: family, partnership or workplace conflicts), we may instead initially conduct a series of individual meetings. We much prefer to hold face-to-face meetings, but if that's not possible we conduct meetings by phone or videoconference - to give us a feel for the people and the issues and to give them a feel for us.
- The mediation process. This is usually a half or a full day meeting, but it can comprise a series of shorter sessions between some or all of the parties (especially in family, family business and workplace conflicts). The mediator ensures that:
- All relevant issues are identified, presented and explored.
- Needs and interests of all parties are validated and acknowledged.
- Creative options and practical alternatives are generated and thoroughly reality checked.
- Risks and rewards of adopting options are considered and evaluated.
- Creative solutions, being workable options that will resolve the dispute, are agreed.
- Finally, when all are satisfied, a legally binding agreement is drafted by the parties (usually on an electronic whiteboard) and signed
Benefits of Mediation
When parties participate in mediation voluntarily, Australian and overseas statistics show that 70% to 80% of disputes are resolved satisfactorily. Our own success rate has exceeded 90% for many years.
The success rate drops to around 50% for court-ordered and other mandatory mediation processes and, since satisfaction with litigation never exceeds 50% (ie: one party wins, one party loses), we argue that, at least on a statistical (and not very serious) basis, even a sub-optimal, mandatory mediation produces a more satisfactory outcome than a "good" litigation!
As all of our Mediations are privately commissioned, we guarantee excellent attention and quick responses. Most "simple" disputes can be resolved within weeks, while "complex" disputes rarely take more than a few months.
On average, when a dispute is brought to us well into its legal lifecycle, converting it into a mediation means it will take only 10% of the time and cost of running the same dispute through court (eg: a case that would take two years and cost $200,000+ through litigation should be resolved within two months for around $20,000 - total cost). We acknowledge that this is still a large expense.
When a dispute is brought to us much earlier on, ideally before other professionals have been involved, we can usually get it resolved within days or weeks, for a significantly lower cost.
Author's note: if it sounds as though we are talking about a lot of money, find someone who has been through litigation in the previous 3 years and ask them these questions:
- How much were you told / did you think it would cost?
- How much did it actually cost? (then work out the % increase!).
- Were you generally satisfied with the process?
- Were you generally satisfied with the outcomes?
- Did the process represent good value for money?
- Would you recommend litigation to your friends as a good way to solve problems?
Mediation should be highly cathartic. Within a relatively safe, assisted and optimistic environment, parties become aware that their perceived and real problems and issues, both personal and non-personal, are being acknowledged, validated and skilfully worked on to produce valuable and workable solutions. Sometimes, especially in a family business environment, this may be happening for the first time in that person's life!
