Mediation: developing your skills

  • Author : Grant Jones,
  • Author : Peter Pexton
  • Author : John O’Connor
  • Date : December 2012
ABOUT THE AUTHORS: Prof Grant Jones is a solicitor, chartered accountant, New York attorney and alternative dispute resolution practitioner. Peter Pexton TEP is a chartered accountant, a senior member of STEP, an Associate of the Chartered Institute of Arbitrators and director of the Ganten Group, a trust company, family office and fiduciary services organisation based in Liechtenstein. John O’Connor TEP is a former member of STEP Council and was recently nominated as a district judge in Ireland. John is principal solicitor at John O’Connor Solicitors, Dublin, and is qualified with the Centre for Effective Dispute Resolution and CIArb where he is a fellow and a member of its mediator panel.

STEP will run its first course in mediation next year and, below, the authors, Grant Jones and Peter Pexton, together with the editor-in-chief John O’Connor, give their answers to a series of questions to provide a qualified view of the current mediation environment and the benefits of taking the STEP Advanced Certificate in Mediation (Trusts and Estates).

Gentlemen, can you describe the geographical and cultural reach of formal mediation as an approach to dispute resolution?

Mediation enjoys wide geographical and cultural support. Virtually all jurisdictions are supportive of mediation. There is no doubt that mediation is now part and parcel of dispute resolution throughout the common-law world. This support for mediation is both practical and philosophical. From the purely practical perspective, governments face cost pressures and courts are expensive: mediation can reduce these cost pressures. Corporations face similar challenges.

Philosophically, there is a growing perception that the outcomes of litigation, over and above the financial outcomes, aren’t necessarily the best outcomes for parties. Culturally, mediation has always been to the fore in many civilisations, especially in the East. However, it has to be said that the nature of that mediation can depend on cultural context – what works in Ireland will not necessarily work in Singapore.

Many non-Western cultures prefer an evaluative mediation, where a mediator actually takes a proactive role in suggesting what they think is the right outcome. Further, and anathema to many in the West with their concern over conflicts of interest, many in the East see nothing wrong in the putative judge or arbitrator being an interim mediator. Thus the STEP mediation course should be seen against a backdrop of worldwide support for mediation, but set within culturally specific norms.

Which professions are likely to be most interested in developing mediation skills?

To be involved in dispute resolution, one needs to be a relatively experienced professional. There is an on-going debate in the alternative dispute resolution (ADR) community as to whether a mediator should also be legally qualified. So, clearly, the STEP certificate will be of interest to lawyers.

However, there is a voice in the ADR community that says the best mediators are those with coalface knowledge.

If we slice and dice the likely audience in a different way, by role, then it is professional trustees and executors who will be most interested. Advisors, too, will be a core audience for mediation as they look to develop the competence to represent clients effectively in mediation and to provide clients with sound advice on constructive management of conflict.

In fact, of the three members of the writing team, one of us is accountancy qualified, one originally trained in accountancy followed by law, and one is purely legally trained.

But any STEP member will find this course of interest. The primary reason for attending the course, however, is to familiarise yourself with mediation within a trust or estate context. If you are faced with a dispute, should you propose mediation and if so, notwithstanding legal advice, are you sufficiently skilled to enter the mediation process? Hopefully this course will empower a wider range of STEP members to consider mediation as a cost-effective dispute resolution procedure.

What are the primary drivers for developing competence in mediation?

There are three primary drivers for developing competence in mediation: cost, reputational risk and client retention.

To expand on that a little, many jurisdictions are now pro-mediation to such an extent that, if a party, notwithstanding they win in any litigation, has failed to consider mediation prior to litigation, they may then suffer a cost sanction. An ancillary driver is reputational risk and self-protection. Litigation can have a negative market perception: nobody likes washing their dirty linen in public. The final driver is client care. Rarely can a client relationship be maintained post-litigation, but they can post-mediation.

Hopefully, if the above is proven correct, then an on-going client relationship is one of the key benefits of mediation competence.

In fact, family disputes are particularly well-served by mediation. A trust provider that emphasises its mediation role may attract more family clients. So attracting new business would also be a driver to up-skill in mediation.

What might someone go on to do after completing the STEP Advanced Certificate Mediation?

Obviously, having a mediation skill set enhances your CV. With this course, aside from the STEP certification and an excellent grounding in the theory of mediation, you get Chartered Institute of Arbitration (CIArb) recognition, too. Your next move might be to become an accredited mediator through some top-up practical training. STEP will also consider establishing a mediation panel for those members who have completed both theory and practical elements.

Enrolments for the STEP Advanced Certificate in Mediation close at the end of January 2013. For more information, visit www.cltint.com/stepcertmediation


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