The American Bar association has recognised
"flexibility" as one of the factors defining high quality mediation
practice.
The finding is one of the factors identified by the
Association in it's published Final Report-Task Force on Improving Mediation
Quality.
While it is good to have some recognizable steps or
standardisation in mediation process, the mediator needs to be ever mindful of
the range of approaches and tools in his or her skillset and try to identify
what may or may not work in a particular dispute.
An example of this arose in an elder law mediation we
undertook recently where an 80 plus lady was involved in a family dispute with
allegations that one of her children had taken advantage of her to enrich
himself. The parties were embroiled in District Court litigation over
a jointly owned property of reasonably modest value and the prospect
that if not resolved, the dispute would further lessen the net value of the
property in dispute and accentuate the divisions in what was already a highly
divided family.
During the shuttle discussions it became apparent that the
son was prepared to compromise his claim for compensation for work allegedly
undertaken on the property, however his mother had reached a hard nosed
position and was intent on taking all, despite the fact that this would
involve a costly and messy trial with the possibility of no real winner.
Rather than follow the customary steps, a heavy emphasis
and lots of time was spent in listening to and validating elderly mum's
concerns and developing a rapport which proved invaluable in gently guiding her
to what was clearly a sensible and commonsense solution of a
complicated fact situation with various allegations and counter allegations
many of which would be difficult to prove.
Whilst the path of the process was not clearly apparent
when we set out and evolved as we moved through the dispute, I as the
mediator, have no doubt that the armchair chat type approach and heavy
investment in rapport and trust was the right one for this dispute and resulted
in an outcome where the parties not only saved significant costs, but were able
to take up the threads of communication in a manner suggesting at
least some prospect however small, of family healing so that the
elderly mother could possibly have some chance of finding
harmony and peace in her twilight years.
