Ever wondered how mediation looks from the outside? As viewed by an observer. How do community members, workplaces, business, government and other potential users, view mediation practice? Is mediation still perceived as “alternative”, or is it now seen as “the norm”, “the way of the future”, or something else?
In this edition, AIDC chats with a member of “Generation Next”, about her perceptions of mediation.
Oma Lee is a final year law student. As part of her law degree, she has studied the theory of ADR, particularly arbitration, but, as yet, has no direct experience. Mediation is a less familiar process and regarded as a ‘soft’ option.
To balance theory with practice, AIDC offered Oma an opportunity to observe a mediation with experienced Mediator Salli Browning.
Oma was pleased to accept. Afterwards, AIDC sat down with Oma to discover how closely her perceptions matched her experience. This is what she said…
Oma, what did you know about mediation, coming in?
Very little , actually. I didn’t really know how it worked. I’m still in law school so I hadn’t had much experience with mediation beforehand. All I knew were the very general procedural-type facts. I knew how it worked, but I didn’t understand it. And I always saw mediation as one of the more “soft” kinds of ADR. Coming from a legal background, and especially when you are not experienced, one tends to lean towards more “legal “solutions.
How did you perceive the role of the mediator?
I didn’t understand what a mediator did. Like many, I thought that they were just facilitators who sat in between parties and went back and forth!
And the mediation process?
To be frank, I didn’t really contemplate the value of mediation at all.
After sitting in on the process, how does it seem now?
Oh, my perception‘s changed immensely! I now have a deeper understanding of the issues and processes of mediation. Now I’m able to appreciate the complexities and issues underlying a mediator’s work to keep the discussion flowing and productive. I can’t say I know mediation – but I can say I now have a much better understanding of it.
It sounds like seeing a mediator “in action” has given you a different perspective?
Yes. I now realize it takes so much more to be a mediator than just sitting down and looking back and forth between the parties. It takes much skill, critical thinking, intelligence, intuition and experience to become a good mediator. I know that now.
That’s quite a list…
It is! You also have to be a multi-tasker!
So, have I got this straight? The mediator has morphed from a substantially silent, seated observer with severe neck strain, (an injury acquired from watching too many verbal volleys from the sidelines) into a kind of finely-tuned, hyper-aware, multi-skilled juggler?
Ha! Well, there’s definitely no room for hesitation! You need 200% concentration, every single minute, and you have to think on your feet! It’s very tiring, very challenging.
Before sitting in, you mentioned that you thought of mediation as a “soft” option. How do you see it now?
I can ‘t imagine how hard it is to not only actively listen and dissect information, but to also have the clarity of mind to charter the blurry waters, to wheedle through all the messiness and harsh words and get to the relevant details, to keep parties on track and also keep emotions from heightening. I appreciate now how much practice, critical analysis and judgement it takes to become a good mediator.
And, in terms of “degree of difficulty”?
It ‘s a very tough task…you have to decide what to say, to decide how to handle parties, to know when to be blunt, and when to be soft …to be sensitive enough to pick up subtle emotions. Then the mediator not only has to pick up all relevant issues, but would also need to decide what issues to address, what issues are important for the outcomes that parties want, and what issues need not be dealt with…. It is so hard.
What, if anything, will you take away from observing the process?
This experience has made me put things into context. Effective communication really is the key. It was interesting and thought-provoking to see how simple miscommunications could lead to such a huge conflict. As the mediation went on I realized there were actually so many layers to the conflict, many hidden issues. People made judgements too soon, people not communicating clearly, people being influenced by the comments around them…. There were a few times both parties just wanted to get up and leave!
This shows how easy things could escalate to an extent that parties would need to go to court, yet all could be avoided if the parties had just done a little more to communicate effectively with each other.
As a law student, has this experience changed your professional outlook in any way?
Oh , it has changed a lot about how I see the law! It brought me new insight into how law is not always the solution. Being legally-trained sometimes prevents me from exploring other more feasible options for problem solving. This is especially so when you are in law school.
What would you say to your fellow law students about mediation now?
In school, you don’t get to operate in a realistic business environment; you don’t need to consider the big picture, the business, financial angle of things. You merely, or at least I used to, dissect issues in a purely legal manner. But this is not how things are done! For example, if the dispute I saw was to be put into a purely legal context, my guess is less experienced lawyers might merely dissect the issues in a legal manner, such as analysing whether the initial agreement between the parties were legally binding, which clauses stated a relevant issue and so on. This could potentially cost much time and money. Yet the fact is, the issue was merely caused by a break down of communication, this was the gist, and it could be solved by a three hour mediation session. Obviously every case must be considered in its specific context, but it’s a reminder of how we should look at things with the end in mind. As good lawyers we need to match our strategies to our goals.
So this experience has influenced your thinking around what it means to be “a good lawyer”?
In a way, yes. As a good lawyer, it’s so important to remember that we are acting in the best interests of our clients. The optimum solution should be the most business and economically sensible. I am reminded that there are different dimensions when looking at things, and tackling issues from a purely legal angle is not necessarily the most sensible way to go to all the time. We need to always look at the big picture, to know our cards, our strategy, in order to play the game well. Knowing the law is not enough, we need to understand how it works and integrates with the bigger picture, and how its role and form can change in various contexts. This lesson I will take with me always.
Excerpt from AIDC Newsletter 2014