I read Michael Haran’s letter ‘Shortcomings of mediation’ (Gazette, 17 June) with some disappointment. Clearly his was an unfortunate experience, but it did not seem to be typical of mediation. I would not like to see it result in either Mr Haran or any other practitioner having a negative view of mediation in general.
From the description, Mr Haran’s experience was probably of some sort of ‘quick fix’ telephone mediation system, where the so-called mediator had very little interaction with the parties, and was (unusually) apparently left to obtain her information from someone other than the parties.
In a more normal civil mediation, I would have expected the parties to be the source of information for the mediator, preferably by way of an agreed bundle. As the mediation progressed, it might well have been appropriate for the mediator to make comment to one party or the other about possible strengths or weaknesses in the case, and to indicate to one party the likely attitude of the other toward particular proposals for settlement. I would not have expected the mediator to refuse to put forward a particular offer.
There is no great mystique to mediation, but I find that it is still misunderstood by a surprisingly large number of legal practitioners. Put simply, it is a process by which a third party (the mediator) facilitates and encourages productive negotiations between opposing parties. Techniques and formats can vary, and at times the mediator may well need to be quite blunt with one or both parties.
Inevitably, there will be some cases where, despite the mediator’s best efforts, the parties fail to reach agreement and the case has to proceed to court (or perhaps to arbitration, sometimes even making use of the person who has been acting as mediator and is therefore already familiar with the issues arising in the case).
Properly used, mediation is a valuable component in the litigator’s toolbox.
Kevin O’Riordan, solicitor, Manx advocate and mediator, Simcocks, Douglas, Isle of Man