in the Legal Profession
Ludwig.F. Lowenstein Ph.D
Southern England Psychological Services
Justive of the
Peace, Vol 163, 4 Sept. 1999, p 709-710
As an expert witness working with the legal system,
and a forensic psychologist, I have for many years acted as mediator
in a variety of areas - way before it was in vogue! There are probably
as many techniques, procedures and strategies on how mediation actually
works as there are mediators.
The following article explains my own approaches which may be of
value to other mediators or those considering using this approach
now and in the future. Table l considers the kind of problems wherein
I have found mediation to have a place. Table 2 sets out the rate
of success achieved and the steps involved in the process of mediation.
Table 1 - 108 Consecutive Mediation Cases
|Marital or relationship conflicts
|Industrial or work related disputes
As may be noted from Table 1, most of the mediation which I practice
has been in the area of marital or relationship conflicts. This
is followed by industrial or work-rclated disputes either between
members of the management team or between employers and employees.
The third group has been in the form of other conflicts, usually
conflicts between neighbours, parents and children, etc.
Table 2 - Rate of Success
|Marital or relationship conflict
|Industrial or work related disputes
A - Very successful
B- Moderate improvement
C - Tcmporary improvement
D - No improvement
Table 2 demonstrates that mediation has had a good result in most
cases. It must be stated that the selection of cases for mediation
bear a large reason for such successes. This will be noted in the
Selection for Mediation
It is important to understand the criteria for accepting cases
which involve mediation. Some clients are not at all willing to
accept mediation. In such cases, there must be a very powerful incentive
and punitive alternatives to encourage participation in the mediation
process. They will, despite everything, be the least likely to have
beneficial results or a positive outcome. Next are those who are
willing to participate, but they have fixed, inflexible or intransigent
positions from which they are unwilling to move to any degree. These
are also unlikely to respond positively.
Lastly, the largest group who expect to adopt a more "give
and take" approach. They expect to have some of the issues
resolved in their favour and they are able to accept that issues
will be judged in favour of "the opposition". This group
is likely to have the best prognosis for a more lasting and successful
outcome. In the case of the largest group (marital and relationship
problems) it is of the utmost importance to accept only those clients
who agree on the following:
- The mediation process is not a vehicle to "have it all
their own way".
- They are willing to view the issues as "problems"
that they wish to resolve with the help of the mediator.
- They will be willing to adhere to the decisions made by the
mediator with the assistance of the factions in conflict.
- Each faction wishes to find a solution, even if this means
giving in more to their adversary and his or her demands.
The last point is the most difficult on which to reach agreement,
and yet if the other three areas are acceptable, mediation still
has a place. It is virtually impossible to achieve success through
mediation when at least three of the above are not attained.
The Mediation Process
Before mediation between conflicting parties can take place, it
is vital to ascertain what the conflict is all about. This can be
carried out as follows:
- Seeing those in conflict individually to ascertain -
- the reason for their grievance;
- what they wish to achieve through the mediation process;
- how much each involved in the conflict is willing to give
- how much power for decision-making they will allow the
- assessing the position of each, using standardized relationship
- getting each party ro take an objective and projective
- see areas of agreement with individuals concerned in the
- ascertain areas of disagreement with the individuals concerned
in the conflict;
- discover areas towards which each of the parties are willing
to be shifted with the help of the arbiter.
- Decide whether there is sufficient common ground hut leave
areas of disagreement for the time being.
- Move the process forward and engage the individual parties
in conflict to view only areas of agreement that have been established
by the individual meetings with the arbitrator.
- Meet individuals in conflict to seek to shift some of the issues
- Meet again with the adversaries to discuss additional areas
- Continue the process of eliminating those areas of conflict
still remaining and to encourage each of the adversaries to make
- Only after there is agreement obtained by individual meetings
should areas formerly in conflict be presented to both parties
when they meet together.
- Future meetings should be arranged by both parties agreeing
to these meetings and the times that they are to be held.
- Both parties must agree when the mediation process is to end,
either because there has been a successful resolution of all or
most of the issues in conflict or because no further progress
can be made.
- All parties in conflict should be encouraged to solve future
problems, if possible on their own.
- Failing (11), parties should have access to further help from
the mediator if this is necessary, and they both accept such help.
Long-term Effects of Mediation
One is frequently asked, "what are the long-term effects of
mediation?" The answer depends on what one means by long-term
and what one means by success. In the case of warring adults who
have had or still have a relationship through marriage or cohabitation,
positive. results may follow successful mediation, but this is not
to say that there will be no future conflicts. Having once been
counselled in conflict resolution, those in further conflict often
try to solve future difficulties on their own by putting into effect
what they have learned from the mediation process. Sometimes this
leads to success; at other times, they may be in need of further
involvement of the mediator. The same can be said for conflicts
in business, industry or between neighbours, etc.
It has been shown how important the selection process is and which
individuals are likely to respond to mediation and those who may
The success rate is encouraging when one considers the difficulties
involved in resolving three areas of conflict, ie, between couples
in a relationship, industrial disputes and other conflicts such
as those between neighbours. My personal experience of the mediation
process demonstrates considerable success in more than 50 per cent
of cases over a 20-year period. It must, however, also be accepted
that mediation is not a panacea to all problems and many instances
and issues cannot be resolved by mediation alone.
Mediation is currently in the limelight as an alternative to the
increasing litigation costs and time involved in trying cases before
the courts. It is felt, and rightly so, that many conflicts between
individuals and groups can more effectively be ameliorated through
mediation. The most recent inaugural lecture by the Lord Chancellor,
Lord Irvine of Lairg, emphasized the importance of mediation. The
Legal Aid Board has also decided to allow mediation to be covered
by legal aid. Seeking mediation as a viable alternative to litigation
has also been supported by the Academy of Expert Witnesses, the
Law Society and the Bar Council.
In the case where mediation fails, there is still recourse to litigation;
however, the fact that litigation remains as the final option may
in itself encourage solutions via mediation.
It must be understood that mediation and the processes involved
is dependent, to a large extent, on the individual carrying out
the task. Although skills can be learned, personality factors and
motivation play a part in the success of the individual carrying
out the "art" of mediation. Among the most important personality
traits in the successful mediator are the following: optimism, conviction,
confidence, and perseverance. Additional attributes include patience,
tolerance, and the ability to gain the respect and support of the
parties involved in mediation.