Client mediation: Expect a few surprises
You have taken the plunge and are scheduled to attend a mediation session in the near future. What should you expect from the mediation, and how can you best prepare for it?
In the first article, we examined why mediation may be the preferred option in resolving disputes, particularly in the context of SME disputes.
Now let’s take a look at the following scenario: a client of your accountancy practice has left your services, alleging negligence on your part. You have managed to persuade them to meet for a mediation.
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The first part of preparation will obviously be preparing your case, gathering all documentation, emails, paper trails and any other relevant supporting evidence.
The next step is to decide who will be present as part of your team: will you go alone or will you take a small team? Do you know how many people your ex-client is intending to bring? It would seem odd if the client came alone and you walked in with a five-a-side team.
Finally, you need to sit down and go through the allegation in detail, and how you plan to deal with each point. You might even want to do a mock mediation with a staff member playing devil’s advocate so you can prepare for the unexpected. It pays to come prepared.
Now you want to know what to expect of the mediator. There are two predominant styles of mediation practiced today: facilitative and evaluative.
In facilitative mediation, the mediator will not offer any advice or opinions to the parties. The mediator will help the parties explore the issues as broadly as possible and will try to help the parties to understand their underlying interests.
The mediator will probe the views presented by asking difficult and challenging questions; the aim is to ‘reality check’ their views and ensure that each party has fully understood the points raised by the other side. In this form of mediation, the key is not the subject expertise of the mediator, but their facilitation and conflict management skills.
Ultimately the agreement will be negotiated and settled solely by the parties, with the mediator acting as a facilitator only. So in your situation, even if the mediator is from an accountancy background, they may have views on the case under discussion, but they will keep poker faced and leave the parties to make their points and come to a conclusion.
On the other side stands Evaluative mediation. This is a newer concept and is not fully accepted in many places in the mediation industry. This is where the mediator has significant expertise in the subject under dispute.
So your mediator has years of practice experience, and has served as an exert witness in claims of negligence. As an evaluative mediator, the mediator will offer guidance and opinions based on their experience as to what a likely legal outcome might look like, or what they strength or weaknesses of each parties’ case is.
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If the dispute is a typical SME shareholder dispute and the mediator has decades of SME business under their belt, they will have the insight into shareholder and director trials and tribulations, and so will be able to offer an opinion as to the likely causes and potential best outcomes of the dispute.
The evaluative mediator will actively advise and guide the parties in reaching what they believe to be a fair settlement based on their first-hand knowledge and experience of the issues.
Although evaluative mediation is a more recent entrant to the mediation scene, it is not uncommon to find mediators who will use this form of mediation under the right circumstances. It may be worth asking the mediator in advance whether they will remain facilitative, or if they intend to adopt an evaluative approach.
Other approaches and factors
There are other styles of mediation such as restorative mediation, where the mediator focuses on rebuilding relationships that have fallen into disrepair during the course of the dispute. This style of mediation will not normally occur in a business-focused mediation.
The exact format of the mediation itself will vary, but unless either or both parties simply can’t look the other in the face, it will generally involve several face to face meetings with all parties and the mediator, as well as private meetings involving each party alone with the mediator.
There will also be periods of boredom and thumb twiddling as the mediator spends time with the other party. If geographical or time constraints rule out the parties coming together physically, there is always the option of the mediation taking place online.
The mediator also may recommend splitting the mediation into several shorter sessions, using each session to examine a different element of the dispute. So the form the mediation takes may vary depending on the circumstances, but the process and procedure will remain the same.
What mediators ask themselves
The work of the mediator is to bring the disputing parties to the point where an effective negotiation can occur. That might sound simple, but it is anything but. Here are some of the questions the mediator will be asking themselves:
- Besides for the revealed aspects of the dispute, what are the hidden agendas, needs and wants?
- How to assist each party to understand the other parties’ position without appearing to take sides?
- Who are the main power brokers in each party?
- What are the personality dynamics within each party and between the parties?
- Are there emotions that need airing, and how best to air them in a ‘controlled explosion’ rather than having a meltdown?
Some people attending mediation for the first time are surprised that so much time is spent on exploring issues and underlying motives.
Discover the values
The reason the mediator does this is to ‘discover the values’. By this I mean to discover what is valuable to each party, and value is not necessarily based on price. It is possible that one party values time of delivery on a contract and is prepared to pay a premium for it.
So the way to set the grounds for an effective negotiation is to discover what makes value for each party, and to see how that value can be shared equitably. Your client accusing you of negligence may be a cover for some other problem they have, and only through exploring their underling interests and all the issues surrounding their business will it be possible to move to a stage where a negotiated settlement can be reached.
In conclusion, prepare your case well, and plan your negotiation strategy well, but be ready to discover that things are not all they seem and that the real issues are yet to be discovered.