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News & opinion

3 SEPT. 2018

A mediator should always be an expert in the subject matter in dispute

Martin Burns RICS

Martin Burns

Head of ADR Research and Development

Birmingham, UK

RICS

Some mediator training organisations insist that, once someone is trained in the skills and techniques of mediation, they can mediate any type of dispute without specialist knowledge of an issue.

The argument goes that a mediator is responsible for managing a process, which enables the parties to negotiate a settlement. It is not necessary for the mediator to have substantial expertise in the subject matter of the dispute. They say that it is the parties, not the mediator, who need to understand technical issues. The parties will know the facts better than the mediator, and since a mediator must avoid giving technical advice to the parties, having a mediator with specialist expertise is of little value in any case.

Parties want subject matter expertise

A more realistic view is that subject matter expertise may not always be necessary but, in practice, it is desired by parties. This rational approach has been transforming mediation in the land, property and construction sector. Fewer parties are ready to accept the “hands-off” facilitative model, and are opting for an evaluative process, where mediators actively use their expertise to inform, and sometimes challenge parties, and to provide sensible options on possible settlement terms.

The recent experience we have had at RICS, the leading regulatory body for professionals working in land, property and construction, reveals that most parties want a mediator who has technical expertise and can understand the precise nature of the dispute. They do not want to spend valuable time teaching the mediator about matters they see as straightforward. The mediator’s role is to liaise between the parties and communicate in an effective and incisive way. It follows that the mediator can do this better if they have significant technical expertise in the subject matter in dispute.

Expectations of parties are changing

A UK survey undertaken a few years ago by the Centre for Effective Dispute Resolution (CEDR) revealed a great deal about changing expectations of parties relating to the expertise they require of mediators. Mediators who responded to the survey reported that the most significant factors in determining their appointments were:

  • Professional reputation (i.e. knowledge of the subject in dispute)
  • Amount of fees and basis of charge
  • Professional qualifications
  • Availability to undertake the mediation as and when required by the parties

Lawyers representing parties in disputes routinely rate similar factors as decisive when selecting mediators, although they also suggest that a CV which demonstrates that a mediator has plenty of mediation experience is also important.

Demand for mediators who can make informed judgement calls

Parties want their mediator to really understand the issues which are at the heart of their dispute. They see the role of the mediator as more than simply managing conversations and exchanges of information. They want a mediator who will help them to make informed judgment calls. Although a mediator with technical knowledge and experience should not give personal advice to either party, they should be able to apply their understanding of the subject matter to ask questions which help both side to properly to consider the strengths and weaknesses of settlement options. If one party is being unrealistic, an expert mediator can ask hard, yet knowing, questions that get the party to reality check his or her position. If the parties require, the mediator should be able to draw on significant subject matter experience to offer possible settlement solutions in the form of reasoned, non-binding, recommendations.

Expertise in the technical aspects of a dispute allows a mediator to quickly grasp the pertinent facts and focus on the issues that really matter.

What challenges do mediators face today?

There are, however, challenges facing expert mediators. These can be addressed through training in evaluative mediation procedures. The main challenge is to avoid making hasty conclusions and offering opinions too early or when they are not wanted by the parties. Expert mediators should exercise restraint and be active listeners, learning as much as they can about the parties’ relative positions and expectations. They should guide and help parties to engage in constructive negotiations. When bringing their expertise to bear, they should not dominate discussions between the parties simply to demonstrate their own expertise.

These challenges are offset by the fact that non-expert mediators can often spend much time getting parties to bring them up to speed on the subject area. Also, non-experts could be led to focus on less important issues and even reach wrong conclusions.

It is perhaps self-evident that ignorance in the subject matter seldom added value, and users preferred mediators who could grasp the issues quickly and proceed to move the parties towards informed solutions.

Expert mediation services for the built environment

This attitude is driving policy with mediation providers, who are setting up bespoke mediation services aimed at specific sectors. In the important built environment sector, we at RICS are providing expert mediation services specifically for the sector. RICS mediators are property professionals and property lawyers though some have even more focussed specialist knowledge e.g. in planning issues.

Part of the attraction of mediation is that parties can choose the mediator that suits them best, and it is apparent that more and more parties are choosing subject expert mediators. The rationale is that parties will more likely achieve a well-reasoned, informed and agreeable settlement with an expert mediator than with a mediator who has not been tried and tested in the relevant subject matter.

Martin Burns RICS

Martin Burns

Head of ADR Research and Development

Birmingham, UK

RICS

Martin Burns is responsible for researching and developing commercial activities for RICS in the specialist area of dispute resolution and conflict avoidance.

Martin is a qualified barrister and a member of the Chartered Institute of Arbitrators. He joined RICS in 1990 and has gained immense knowledge and expertise in dispute resolution through 22 years working in this sector.

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