The Merits of (Pre-)Mediation
Mediation in litigation has evolved over the last decade, with facilitative and sometimes evaluative mediation styles being used. Pre-mediation meetings have become a significant trend, allowing mediators to understand the dispute, gauge the temperature and apply the most suitable mediation style.
Author: David Ravenscroft, Senior Consultant
Mediation has now been part of the litigation landscape in Hong Kong for over a decade. To avoid it becoming a ‘tick-box’ exercise, it may be helpful to remind ourselves of its benefits – for example, it avoids the expense and delay of litigation, preserves relationships and allows creative settlements which can draw upon matters outside the immediate dispute.
Whilst the basic model, namely facilitative mediation, remains unchanged, the conduct of mediation has developed under the influence of world-wide trends and the practical experience of all those who participate, whether as mediators, parties or their representatives.
The position of the mediator depends on the style of mediation
Facilitative mediation is where the mediator manages the relationship between the parties and the process of the mediation but allows the parties to make their own decisions as to the negotiation and settlement of the dispute. The mediator will be much more than a messenger between the parties. He will reality test the merits of the case and any possible settlement but he will not seek to make a judgment as to the merits. Evaluative mediation, on the other hand, is when the mediator goes further than facilitating the agreement and actually provides an opinion as to the merits of the dispute or likely settlement.
Evaluative mediation has certainly been much discussed as one of those trends but it is difficult to believe that in its purest form it is often practiced. How often has a mediator baldly given his verdict on who will win or lose a case, and how often has such an evaluation ever been accepted by the predicted loser?
If, however, evaluation is a concentration of minds of all the parties on the merits of the case and the dispelling of wishful thinking, then it has an important place in mediation. It should, however, be remembered that a single-minded focus on merits will mean less consideration of creative settlements.
Pre-mediation: gauge the temperature to set the strategy
One of the most important trends, and one enthusiastically endorsed by many mediators, is the practice of holding pre-mediation meetings. Such meetings which are held by the mediator with the parties separately, would normally be held at least one day before the mediation. Usually, this would be in an office environment but with the advent of Zoom there is no reason why it should not be held virtually. It is desirable for the party and his or her representative to participate but if the party is unavailable, it is still worth holding the meeting with just the representative.
Pre-mediation meetings have many advantages for both mediators and parties. For mediators, these meetings allow them to understand the background and context of the dispute, as well as the interests and expectations of each party. They also enable them to take the temperature of the dispute as it were, to assess which type or style of mediation would suit the case best, and to plan accordingly. For parties, these meetings allow them to express their views and concerns freely and confidentially to the mediator. They also help them to get familiar with the mediator and his or her role, and to feel more comfortable and confident about participating in the mediation.
A one-style mediation approach is rare
Most experienced mediators tend to agree that they should approach a mediation with an open mind and adopt a style or styles that suits the particular parties and the dispute. Mediators will usually move between different styles as the mediation develops. Few mediators describe themselves as simply ‘evaluative’ or ‘facilitative’, they will seek to provide whatever best suits the problem.
In conclusion, mediation is a dynamic and diverse field that offers many options for resolving disputes in a constructive and collaborative way. Facilitative and evaluative are by no means the only styles that may be employed. In a future article we can discuss the various styles of mediation and when they may be best employed.
Disclaimer: Whilst every effort has been made to ensure the accuracy of this article, it is general in nature and does not constitute legal advice of any kind. You should seek your own personal legal advice before taking legal action. We accept no liability whatsoever for loss arising out of the use or misuse of this article.
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