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Mediation – the strength of the neutral challenge against a deadlock

Two entrepreneurs had been in dispute over an acquisition and approached a wise Counsel to help them sort their differences.

Having read what the first had to say, the Counsel said ‘I can see why you think you are in the right’. Likewise to the second he said, ‘I can see why you believe you are right’.  At this the Counsel’s wife shouted ‘..but they can’t both be right’ to which the Counsel replied ‘and you are right also..’.

And therein lies the fundamental bedrock of western mediation, which is that the mediator is a neutral. That is someone without a direct interest in the subject matter of this dispute, nor any relationship with the parties concerned. Someone who is not there to take sides, nor evaluate who is right or wrong. Rather, the mediator is there to provide a positive energy and objectivity, one that hopefully enables the parties to find some way of resolving their dispute.

How in reality a mediator is best able to use that neutrality is of course often the most difficult step in achieving a successful outcome.

In practice, albeit to differing degrees, parties typically take a binary approach to a dispute, establishing positions and then looking to pull the other party to their side.  It is important that the parties recognise therefore that, through the mediation process, an experienced and well-prepared mediator obtains a unique perspective both on the personalities concerned and the issues arising. This in itself is a huge positive of the process. It is also one of the main reasons why it is so important at an early stage for the parties to actively engage with the mediator in clarifying the mediator’s understanding of the facts, the issues arising and resulting actions from their perspective, knowing that in doing so their exchange is confidential. This is because, apart from getting a fuller understanding and engagement with each party, one of the mediators key roles is to try and anticipate the deadlock that is likely to emerge.

Anticipation in itself of course requires understanding. As the day unfolds therefore the parties should recognise that the mediator is there, as a neutral, to actively challenge each side’s thinking and the strategy being adopted. At one end of the scale that might be to seek to build on ideas and progress made, and at the other end it might be to ask probing questions about weaknesses; to take a hard look at cost against benefit; personal issues at play and the need for a human touch; or to generally revisit and re-assess.

In short, by the use of objective, but sometimes difficult, challenges, a mediator provides the parties with the ideal means to explore what shape and size of deal might be possible, and thereby break their deadlock.

At Ward Hadaway we offer a range of mediators with the latest experience ideally placed to help you and your clients, click here for more information.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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