How to make mediation work?

How to make mediation work?

Prof. Jan van Zwieten RI,RA,RO (Netherlands)

Introduction

Mediation is more and more well-known and a lot of countries in the eastern part of Europe, Eur-Asia and Asia now adopt a law in mediation. In most of these countries the mediators also organise themselves in an association. So it looks as if all ingredients for a success story of mediation are in place. But what can we learn from the same developments in other countries both in the regions but also in Western Europe where the same development has taken place?

So this article is to discuss the possible pitfalls and to learn from other experiences. Does it mean that it is negative? No, not at all, but there is only once a first opportunity. It just wants to make sure that this unique possibility should be taken very serious. If we don’t make the right choices it will take a long time before it will work (if ever)!

In Europe the Netherlands is most successful in implementing mediation. It is generally accepted in society, by lawyers and the courts. So what can we learn from it? From this comparison we developed 10 golden rules to a successful implementation.

Development of mediation

Already in the beginning of the eighties of last century, mediation began to have an official status in some countries (for example the USA and South-Africa). But in the nineties it came up in almost all countries in Western-Europe. So Holland founded the “Netherlands Mediation Institute” in 1996. It was a private structure. Legislation was not even considered at that time. The discussion in Europe started around 1998 and resulted in an official directive on mediation in 2009. Holland adopted it’s first law in 2009. This law is quite general and for sure doesn’t have any obligations to go to mediation whatsoever. So compared to for example Italy (and now Greece) the law doesn’t help mediators much. In Italy and Greece mediation is mandatory before going to court. But in the end this doesn’t seem to be the solution to really make it work. Basis should be that it is accepted by most people, institutes, organizations, related professions (lawyers, psychologists, accountants) and government as a serious alternative to court.

So what was the process in the Netherlands? For almost 25 years the initiative came from the mediators. The first ten years there were just some enthusiastic pioneers. Of course there were many different opinions and they had their fights. But they had time to experiment and it was not in the spotlights. It was as a child that had time to grow-up. And like children they made mistakes and learned from it in the process to maturity. Now there are almost 3,000 registered mediators active, about 200,000 official mediations and many more unofficial. Also there are about 30,000 people that followed the course on mediation and use the skills in their daily work. Among them judges, mayors, HR-managers, financial specialists etc..

So what is the difference in the process to all countries that have no tradition in mediation and started recently (often because of the European-guideline)? In these countries mediation is introduced immediately on a grown-up level. Mostly a law is adopted and a formal structure is implemented. Training programs are started and publicity is made. So what is the problem?

• No tradition in mediation, people don’t know what it is
• The whole juridical system sees it as a threat (lawyers) or don’t take it serious (judges, politicians)
• No experienced mediators
• No ambassadors and success stories
• No infrastructure or money to build it

So we expect the child to act as a grown up without any support or guidance.

Does it mean that it is not possible? No, on the contrary. A famous saying in Holland is “Every disadvantage has an advantage”. If we learn from the experience of others we can bring mediation to maturity very fast. Don’t re-invent, but listen, learn, adapt and bring even a better version of all existing. So what we want to do in this article is to show the ten steps, the ten golden rules to a successful implementation. Based on all experiences and as a guideline for a mature implementation.

The ten golden rules for a successful implementation

1. Unite, act as 1!

It is very difficult to implement a new concept in the market. Especially in such a delicate area as conflicts and law. There are two big challenges. First you must make the concept known, so how to reach the people? The second is make them buy it. For this they need trust and believe. In this all mediators have the same interest. If we are not able to present ourselves as one, the people will not understand it. So we have to put our differences aside and speak as one group of professionals. This also gives us more strength as the numbers count in all exposure and discussions (for example to the government and courts). Therefore:

• Transparency in the market
• The strength of numbers
• Common values as mediator are more important than our differences in background or vision

2. Only 1% of mediations come from courts!

All new countries focus on the law as the holy Grail. Everyone believes that the law must push people to mediation. The Italian system is the best example in this. But even in Italy we see that it is not the solution. The reason is simple. Only a very low percentage of cases at the courts will go to mediation or is even fit for mediation. The strength of mediation is to solve a lot of conflicts before they have the escalation of court. And even more mediations will be on conflicts that never go to court. But there is a big advantage if the courts use mediation. It brings visibility and credibility. So it is not about the numbers, but serves another purpose. If it is not forced, judges will also be more willing to cooperate. Therefore:

• The law is of little importance
• Court mediations are only for visibility and credibility

3. Create a clear structure!

We see that there is a width variety of structures in the countries. Unfortunately this is not because all countries have their own specific strategy in it. The problem is that they just start a structure without really thinking about the consequences of it. They just want a juridical entity to unite people. But as we will see if we move on in the aspects of the golden rules there are a lot of aspects to be taken into account. This means that we need a structure that is clear in roles and procedures. In Holland we therefore have three separate juridical entities with each of them a different role and task. Within these organisations there is enough power to execute. This means that both publicity and regulations are taken care of. Only a group of volunteers is not an organisation. It is great that they will do this, but it is not sustainable and not nearly enough. You need a lot of personnel to take care of all making of legislation/regulation/procedures and especially maintaining this. If you only work with volunteers they have their attention mostly on their normal work, and do it as a kind of hobby. You need enough people with dedicated attention:

• Energy flows where attention goes

4. Quality!

Mediators must operate and present themselves at the same level as lawyers, psychologists, accountants and many others. From the beginning mediation however has been a side business to other professions. So we have lawyer-mediators, psychologist-mediators etc.. The level was actually represented by the basic education and basic profession. But this is no guarantee at all that the person is a good mediator. Mediation is a profession by itself. You need to take it serious and spend enough time doing it and preparing yourself for it. So also the whole quality system around it must be professional. In the Netherlands we changed the quality system in 2012. The demands went up enormously. The result has been that now we lost 2000 mediators as they could not meet the demands. But the number of mediations went up significantly. The remaining mediators are more focussed on mediations and the people perceive more quality, so are more willing to go to mediation. So now we have more strict demands on exams/assessments, there is an official audit on Permanent Education every three years and an obligation on peer-groups. So we have less mediators but more mediations.

• Show the same level as lawyers, psychologists and accountants
• We are mediators, not a side business, take it serious

5. Take it serious!

In almost all countries the course to being a mediator is quite short. We base ourselves on our basic education (bachelor or master level) and only focus on skills. One of the reasons for the success of mediation is that the course is great and the skills are really helpful to everyone. But that is not the issue. What will be the interpretation of the outside world? People train themselves in a course with a limited number of hours (mostly 12 to 20 days) and then pretend to have acquired the competences of a completely new profession. For sure politicians will not see it this way. Therefore they see it as lawyers that did something extra. In all the laws we see the tendency to keep it restricted to people with a master study in law. Therefore the education to mediator should also be upgraded. Therefore now we see the development of bachelor and master education to mediation.

• You cannot just go on the basic education; Mediation is a separate profession

6. If you cannot beat them, join them!

In all countries where mediation starts they find themselves in a fight with the lawyers. Lawyers see it as competition. Also the whole court system, especially the judges, don’t take it serious. Of course there are always exceptions, but basically this is what happens. Mediators try to fight for their position in trying to prove that what they do is equally good, or even better than what the others are doing. This ends up in a fight, a fight you can never win. In the USA and the Netherlands this was not the case because when it started it was unknown and not seen as a threat. The child had time to grow up. But even in those countries the moment came that the fight was there. The only solution was to get out of the fight and be part of the system. Make sure that you have as much as possible ambassadors under these groups and make them clear that you’re not going to take their work. We want them to be part in the mediations, sit at the table, spend their hours. They must start liking mediation, recommend it to their clients. Find the win-win. A client will appreciate a lawyer that takes care of a good solution, so give them the opportunity to shine, to show that they care about their clients.

• Judges and lawyers are our friends, find ambassadors
• Win the crowd, they are our clients

7. Courts can help in credibility!

Although the court mediations are only a very small percentage of the mediations it still is important in terms of visibility and credibility. People will think that if the courts trust mediators in their jobs, it must have quality. Also it is good publicity, the numbers are not relevant but you can go to the media with it. Actually the low number will help you in winning the lawyers for mediation. They see it less as a threat. Their work is mostly court related, we bring them extra work for new cases that otherwise might not even have got there. So don’t push for too much, it will only have a negative effect, but make sure that you’re in!

• Only 1% of mediations, but credibility to the clients
• Win the judges, train the judges

8. Find the entry doors to the market!

So if the court mediations are only 1%, then where do the mediations come from? To us it is quite surprising that there is not much attention for this. We are introducing a new profession, we have to do our marketing. To do this you have to know your potential market. Where are a lot of conflicts? Who doesn’t want conflicts to be solved in a fighting spirit in court? Thinking like this the answers are not difficult. The area of possibilities surprisingly wide. The first to pick it up were all civil services like ministries (tax department, defence), town halls, public transport etc.. They are there to serve the people, not to fight them. They are mostly under the responsibility of politicians that benefit from popularity with people. Second are big companies that are afraid of reputation damage (first of all insurance companies, but also banks, accountants), all big companies with a lot of labour conflicts. It costs money if it escalates and people are less willing to work there. Advisory companies and services are also interested. They see conflicts within their clients, solving it will help to keep the client. And there are many more. Targeting on those resulted in large numbers of mediators within these organisations. As their might be a conflict of interest it also helps mediators outside these organizations to work. And more and more there is a culture of conflict resolution. So ask yourself:

• Where do we find conflicts?
• Who has something to loose in a conflict?
• Where is the win-win?

9. Train them all!

Training people helps in several ways. First of all to make them aware of the advantages of mediation, they see that it works. Second that it is not easy, it is a profession and very different from what they always do and consider to be conflict resolution. Third that it doesn’t take away their job. On the whole it brings more work. So they want to be part of it. So find ambassadors in each group and penetrate the group with the purpose of committing themselves by doing a training. Here you can easily make use of the same groups in more established countries where they will definitely give positive recommendations. So go to:

• Judges and lawyers
• Mayors, politicians
• HR-managers, CEO’s
• Accountants, advisors
• Insurance companies

10. Culture is not an excuse!

Don’t say; this will not work in our country, not in our culture

This is what we hear in all new countries. But this is nonsense. The culture in Western Europe and the United States is the most individualistic culture in the world. In all other cultures people are more used to collective ways of problem solving. Also the legal system in Western Europe is perceived by the people to be objective and fair. In many other countries this is not the case. So why would people go to court if they don’t trust the system? Why not take the safe route and have some kind of control on the solution. People in Western Europe have no financial blockade to go to court, in other countries this might be an issue (mediation is cheaper). So there actually is a lot in favour of mediation for North Macedonia. For sure every culture, every society has it owns rules, its own way of doing. So you have to adapt the way how to make it work, how to reach and convince people. But it can be done!!

• People do not have more faith in your court system
• Conflicts are similar
• It is cheaper
• People want to have some control and don’t want to loose