I am a Professional Mediator. I also happen to have a legal background – I was a solicitor for 17 years before I became a full time Mediator. I have specialist knowledge of personal injury litigation in particular. I was therefore interested to read this comment from Lord Jackson at page 387 in his recent review of civil costs :
There is a widespread belief that mediation is not suitable for personal injury cases. This belief is incorrect. Mediation is capable of arriving at a reasonable outcome in many personal injury cases, and bringing satisfaction to the parties in the process. However, it is essential that such mediations are carried out by mediators with specialist experience of personal injuries litigation. (emphasis added)
I am not sure I agree with this view and I am certain my guest blogger this week does not. I am honoured and delighted to welcome David Richbell a mediator with In Place of Strife, one of the most experienced commercial mediators in Europe. David has this response to Lord Jackson’s comment:
As a practising commercial Mediator I was, of course, delighted to read (on page 387 of Rupert Jackson’s report) his support of mediation for personal injury cases. However, he went on to say “it is essential that such mediations are carried out by mediators with specialist experience of personal injuries litigation”. Unfortunately that seems to be the trend in the marketplace – lawyers tend to appoint Mediators that have specialist knowledge in the area of their particular dispute. It seems to me to demonstrate a misunderstanding of the Mediator’s role, which is not to be an expert in the particular field – parties have their own advisors for that – but to manage the mediation process in a way that gives the parties their best chance of achieving a solution. To do this the Mediator needs to be able to create a trusting relationship with everyone present at the mediation and to have the wisdom, experience and negotiating skills, as well as a firm hand on the process, to ensure that people remain focussed and that momentum is maintained. None of that requires specialist knowledge.
I accept that a ‘specialist’ Mediator speaks the jargon and may bring comfort to a party because s/he understands the problems and difficulties in a particular sector. But the downside is that the Mediator gets immersed in the detail, because it is her/his specialist area, when one of the most important mediator roles is to help parties get out of the swamp of detail and take a more ‘big picture’ approach. That can be difficult for a specialist – I know how eager I am in construction disputes (my ‘specialist’ area) to study the claims and analyse the papers. But mediations are settled through commercial negotiation, not on points of law or technical detail.
I passionately believe that a good Mediator can mediate anything. But then as a generalist Mediator who wants to do Personal Injury mediations, I would say that wouldn’t I?
Many thanks to David for his views. What do you think? Add a comment below and join the debate.
I generally agree with David’s view. When I worked in the Ombudsman field I dreaded nothing more that getting a complaint about my area of “expertise” when I ended up fighting the urge to think I knew the answer or the right thing to do. As a mediator that distance from the detail is crucial to honouring the process and I have always been a great believer that by asking the “stupid” question you reveal far more to everyone in the room. Of course, as always there are exceptions and in the field of divorce mediation, where I practice most often at the moment, you need some specialist knowledge of the divorce process and what is required by the courts – of course the real subject matter, the marriage, remains the specialist subject only of the couple!
[...] This is just like selecting a joint expert. Either party can nominate their preferred choices to the other side. If you can’t agree you could ask a mediation provider like ADR Group to appoint one (although the fee will be greater than going direct) or you could ask me to find a mediator. As always it’s best if you get a recommendation so ask your colleagues if they know of any suitable candidates. You might also want to consider whether or not you need a specialist. [...]
[...] quickly but there is a counter argument that experienced mediator David Richbell describes on my commercial mediation blog. Essentially what you want is a good [...]
I do not want to challenge Lord Justice Jackson’s view because he supports mediation but I wonder what in his experience of the process leads him to believe that a mediator requires specialist skills beyond mediation skills.
The mediator is neutral and without opinion. Mediators listen. They do not express opinions. They do not give advice. What would the specialist personal injury mediator bring to the mediation that an effective non-specialist would not?
Established specialist practitioners can sometimes be a liability as mediators in their specialist field – for two reasons. First, they may have an opinion as to settlement terms (what specialist doesn’t)? Second, they may miss some of the options that a non-specialist, thinking outside the box may spot. I reckon that the ‘open mind’ is often better than the specialist knowledge. By the way, David Richbell does have lots of advantages over many ‘specialist mediators: huge brain, massive experience and total likeability!