I had a very interesting experience the other day. One that shocked me. I realised that mediation isn’t always (or often, it may seem) mediation, or at least not as I think of mediation.
When you think about mediation, do you imagine the concept of some kind of round table discussion to work out the solution to a problem with a neutral third person there to help guide that discussion? Or do you picture the different parties hidden away from each other in different rooms with the ‘mediator’ shuffling between rooms relaying information to help parties work out the solution to the problem?
I suspect that the average person sees mediation as a round table discussion. I was shocked to discover that this is NOT what is being offered by their mediators and/or lawyers to the vast majority of people at one of Brisbane’s busiest mediation venues.
For the first time as a mediator I had the opportunity to use the mediation rooms available for hire at a very popular venue in Brisbane city. As a venue, it was great. Plenty of space, private rooms, friendly & helpful reception staff, a kitchenette etc. I arrived early for my mediation, as I like to, so I can set up the room and be there for when my clients arrive.
I was greeted with surprised concern by a staff member: “I just wanted to check, as you’ve only booked one room, is that right?”
Me: “Yes, that’s right, we only need one room.”
Staff: “It’s just that most mediators book 3 rooms, one for each party and one mediation room.”
Me: “It’s ok, my clients want to do a face to face mediation, so we only need one room.”
Staff: “Really? How refreshing, that never happens here, they might be all in together for a short time, to say, welcome them all then they split into their separate rooms.”
Me: “Well it’s our intention to be in the same room and I can give them a break and I can let them out separately if they need to.”
Staff: “I wish there were more mediations like this!”
[I should say that I did intake appoinments a few weeks prior to the mediation and talked to both the clients about the format they would like for mediation, and both wanted to try face to face mediation.]
The mediation proceeded in, what for me anyway, was a reasonably normal face to face mediation. We set an agenda, we worked through the different issues that needed resolving, we allowed for toilet & coffee breaks, time for the clients to obtain legal advice if they needed it. One client was legally assisted on the day. The clients talked and were able to reach substantial agreement with respect to arrangements for their child. I don’t mean it was easy for them, it never is, but they were able to do it.
At the conclusion of the mediation, I went to the staff and asked them to print off the agreements. “Are you finished already?”
Me: “Yes it’s been a really productive mediation, it’s amazing what you can achieve when you all sit down together to talk it through.”
Staff: “Wow, it’s so great to see a mediation all in together that’s worked so well.”
Me: “Well to me that’s what mediation SHOULD be, I’m glad to have made your day!”
Whilst I’m pleased that my mediation went well for all the people involved, I am disturbed that for a busy mediation venue, the concept of having the parties in the one room was highly unusual. In my view face to face mediation should be the default with the ability to provide a shuttle style mediation if there are genuine reasons for the sake of safety and power imbalances to keep parties separate. If the keep-them-apart model is the default, I fear that ‘mediators’ are really providing only facilitated negotiation and not mediation.