Fashions and words used to describe methods of resolving disputes change and evolve. For example it is now no longer fashionable to refer to other methods of dispute resolution as “Alternative Dispute Resolution” as that implies that the methods of resolution are “alternative” or are somehow lesser beings than traditional dispute resolution pathways such as going to Court.

However, whatever words are used to describe what process is being followed, or the process itself, should not get in the way of what is trying to be achieved. In most cases that is resolution of disputes for the benefit of the parties. Too often other methods of dispute resolution such as mediation as being turned into adversarial processes by the people running the process or by the parties or their representatives. Resolution by any means can sometimes be the goal of some of the participants and the needs of the participant clients can be lost.

Many mediations do not ever get to discover what the participants really want out of the process. Their participation is controlled by the other actors so that they do not “ruin” the mediation or “give away” things that might not be to their advantage. Sometimes this “control” gets in the way of actually finding out what they really want and actually achieving that outcome. Little effort is put into real dialogue between the parties. A real mediation is not a negotiation. Mediators need to be brave in finding out what the clients actually want. This can be done in the absence of the other party, so that nothing is given away by the client honestly letting the mediator know what they really want.

Capture of the process by the advocates should be avoided. The advocates should advise their clients but should not control the process for their own ends. They need to also really know what the clients really want as an outcome. Often contrary to popular belief money is not the desired outcome. For example a student at a tertiary institution who is disgruntled by being failed (they believe unfairly due to bias etc) is not going to find an offer to refund their fees for the course to be an attractive outcome. What they are looking for is perhaps confidence that the process followed has been independently checked to ensure that the rules and processes were correctly and fairly applied.

Picking the right mediator or mediation service is important. So too is ensuring the advocate understands the process and is able to ascertain what the client really wants to achieve. Will they listen to the client and guide them with their experience as to how to achieve the best possible outcome. Remember that an agreed settlement at mediation usually requires some compromise of some things to achieve others but can all participants real needs or desires be accommodated in what is achieved? If so then both parties can be pleased with the outcome. An open mind is also required if you are going to achieve your aims as you will need to understand what the aims of the other party are so everyone can work on mediating an outcome that resolves the dispute.

Alan Knowsley
Litigation Lawyer
Wellington