In my opinion… CEDR mediation training for a judge
By The Honourable Mr Justice Lightman
This article was originally published in the November 2007 issue of ‘Solutions’, the magazine of the Law Society’s Dispute Resolution Section.
When I was called to the Bar in 1963, the only reference to mediation was a footnote in textbooks on the Law of Evidence which stated that the privilege against disclosure of “without prejudice” communications extended to communications by the parties with a mediator in divorce proceedings. This was not a matter of interest to those practising elsewhere. Indeed the role of the barrister was to concentrate on fighting and winning the cases in which he was instructed, and generally negotiating with the other side was an unwelcome diversion to be left to solicitors.
The expertise required of barristers has remained the same. The three primary skills of which are; forming and expressing a firm and reliable opinion or judgment on the likely outcome of a case, the power of advocacy of his client’s cause and skill in so framing questions (and in particular leading questions in cross-examination) as to secure answers which assist his client’s case.
I practised at the Bar between 1963 and 1994 when I was appointed a judge. During the latter part of that period I became increasingly concerned about the way the adversarial system of litigation operated, how the outcome of cases could turn and often did turn on the quality of the solicitors and counsel that a party could afford to retain and the financial and non-financial costs of litigation. From the early 1990s I became aware of the existence of mediation as a medium designed to resolve disputes avoiding recourse to the courts and, the more I learnt about it, the more enthusiastic an advocate of mediation I became. My experience when in 1994 I became a judge reinforced my views, seeing how quickly bills for costs built up and the ruination of parties caused by precipitate ill-advised and unnecessary litigation. I have accordingly regularly recommended the parties to mediation and ordered mediation.
But I must acknowledge that, whilst over the years I have appreciated the advantages and benefits of mediation, I have had little (if any) appreciation of the process itself. All I knew that an order for mediation usually worked: how and why it did so did not require exploration and was unexplained.
Accordingly when an opportunity arose in August for me to attend CEDR’s 2007 Mediator Skills Training Summer School to be held at the Dolce Hotel Sitges (an hour’s journey from Barcelona), I accepted with enthusiasm. I was keen to learn the workings of the process which I had spoken about for so long and to train and qualify as a mediator.
I soon realised that the Summer School course was going to be no push-over. There was required before the course began a period of serious study and the Summer School itself would be a period of intense training. I received in the post the CEDR Mediator Handbook and a substantial folder. The Handbook, a work of 156 pages, is a training manual for mediators (amongst other things) explaining the concept of mediation and instructing in the foundations, skills and framework for effective mediation. Eight hours is the time recommended to be allowed for reading it, but much more is required to absorb it.
The folder performs a variety of functions. First it sets out the CEDR policy regarding accreditation of mediators, giving guidance on the eight competencies or skills to be assessed at or after the end of the course by CEDR faculty members. Six of these related to the conduct of simulated mediations on the last two days of the course and two are assignments to be completed within two weeks of the conclusion of the course. Secondly it set out details of the CEDR faculty members attending to train and assess those taking the course. What was impressive in this regard was the ratio of faculty staff to delegates (about one faculty member to three delegates which as it turned out, secured personal tuition and supervision of the highest quality) and the experience and expertise of the faculty members.
The folder also provided: a valuable guide to the conduct of mediations and the various phases of the mediation process; reading and preparation required to be done before, during and after the conclusion of the course; twelve case studies for role play based on past real-life mediations to be used during the course and the assignment of the roles to be played by each delegate – claimant or defendant, claimant or defendant lawyers and mediator or assistant mediator. Each delegate also received confidential instructions regarding the position to be taken in the role assigned in the simulated mediation.
We arrived in Sitges in the afternoon of Sunday the 19th August. That evening we met the assembled faculty members and each other. Even as the faculty members came from a variety of disciplines, the thirty delegates themselves came from a variety of occupations and all parts of the globe, perhaps the most exotic of which was Mongolia, reflecting the international interest in and demand for mediation. The following day the course began (as each day did) at 8 a.m. and concluded at or shortly after 6 p.m. in time for a swim in one of the several open air pools before dinner. Day one began with the first of many informatory talks, then a practical demonstration by faculty members of a mediation based on the first of the case studies. The experienced faculty member assigned the role of mediator made the role appear so easy and natural and we were left eager to take the opportunity to assume the role of mediator in simulated mediations scheduled for later that day and the following day.
The assumption of the role however was immeasurably more difficult than it had appeared. The CEDR approach founded on concern to maintain the parties’ trust in the mediator’s open-mindedness is that the mediator should progress slowly at meetings with one or both the parties through an “exploratory” stage exploring the parties’ views as to the relevant past facts, the issues and the goals which they are seeking to achieve before moving on to the negotiating stage exploring possible bases of settlement; that the mediator should so far as possible ask open questions and avoid leading questions; that the mediator should avoid being judgmental and expressing his views on the merits of the dispute even if asked. This approach for lawyers trained in the adversary system of litigation is counter-intuitive. It is second nature for him to challenge a flawed argument to express a view on the outcome of the dispute if it proceeds to court to examine by leading questions a case which may not be sustainable. The discipline required of a mediator takes time and experience to adopt as second nature.
After two days of intensive training, the third day was a welcome “day off” allowing to explore the town of Sitges and the lively and beautiful city of Barcelona.
Using a single case study, the fourth day illustrated the major phases of a typical mediation process and was divided into three sessions; opening and exploration, exploration and bargaining and, finally, bargaining and conclusion phases.
The exercise was conducted in groups of six delegates remaining in the same groups all day but exchanging roles through the sessions. The consequent intense concentration for the day on a single case study, albeit with different role playing in each session, afforded an approximation to the reality of a mediation. The whole exercise was conducted under the supervision of a faculty member who, through confidential advice on our performance as mediators at the end of each session, encouraged the development of our skills and knowledge.
The fifth and sixth days were “exam” days. Eight case studies were role played before examining faculty members and each delegate was afforded two opportunities to act as mediators. At the end of each session the examining faculty member again gave each delegate a confidential review of his performance – without (of course) disclosing whether he had “passed”.
After the last session on the sixth day there was a final meeting of the delegates with the faculty members. We were reminded that our accreditation turned, not merely on our performances as mediators on the fifth and sixth days, but also on the assessment of our performance on two post course assignments to be completed within two weeks. These assignments were the drafting of a settlement agreement reflecting the terms agreed or (if not agreed) likely to be agreed at the conclusion of the day 3 case study, and a self assessment of ourselves as mediators based on our performances over the period of the Summer School and in particular of our strengths and weaknesses and of the means whereby our weaknesses and areas of our mediation skills needing further development.
There followed that evening and the following morning fond farewells to our new friends amongst the faculty members and delegates gained during our close association in Sitges. We had worked hard together, we had learnt a great deal, and were in the course of mastering new techniques and disciplines. We left hopeful that we had surmounted the hurdle of accreditation (not all pass) and if so, with a passport to practice as a mediator, we could play our part in affording the public a speedy, economic and effective alternative method of dispute resolution.