Mediation Deep Dive: Mediation Cynicism and Scepticism

By Chris Irons

‘It won’t work’

‘Mediation is useless for our situation’

‘The other side won’t cooperate, we’ve tried before’

‘We’ve gone beyond talking, we have to take legal action’

We have heard them all.

The reasons, the rationale, and the value judgements from some parties about why mediation will not, cannot, will never work.

We call this mediation cynicism, and it is a real and very understandable thing.

To understand it better, we need to follow Kylie’s advice. In other words, mediation becomes a practical option after a situation has grown and snowballed into a dispute in which the parties have strong, passionate positions. Those positions are tough to dislodge, especially where things have been back and forth over a period of years. Mistrust and suspicion build to the point where any option, other than the intervention of the relevant court, tribunal, adjudication, or other legal proceeding, is seen as unviable.

Mediation cynicism is also built on an emotional foundation. Given that many strata disputes we see have their genesis in a communication breakdown, it makes sense that an option such as mediation – in which the process is all about communication – may be viewed without enthusiasm. After all, what is the point of talking when it was talking which got us here in the first place?

All these are valid thoughts and we have seen and heard them – and others – raised when we talk with clients about mediation. Battle-scarred parties in dispute find it difficult to be open to the idea of another process or let through their hard outer shell the idea there might be a facilitated way through their problems. History is of course littered with examples of parties poles apart and who you could never imagine sitting down at the table together, let alone emerging from that table with an agreed way forward that puts an end to their pitched battles.

And yet, history also tells us those breakthroughs have happened. We will not list them all here. Suffice to say, if a former guerilla group member can, years later, emerge as the leader of the very same nation they fought against, with promises to bring about an end to differences, we think strata parties in dispute can too.

To be specific, here are our 5 Reasons Why Your Mediation Cynicism is Misplaced:

  1. Mediation Is Not an Endless Yak-Fest: it is, in fact, a highly structured process overseen by a trained and accredited professional whose job it is to ensure the parties follow a carefully scheduled path. It is not a case of you talk – then the other side talks – and so on, ad nauseum. Indeed, there are plenty of moments where instead of talking, listening, and absorbing is the focus.
  • You Need Not Go Over Every Word, Conversation or Utterance: mediation does not compel the parties to dredge up every interaction and analyse it for all it is worth. Far from it: part of the mediator’s job is to notice the crucial words and phrases that are clearly the most critical issues to the parties, which in turn form the basis for the mediation discussions.
  • Equal Time and Space: the mediation session is all about each of the parties having equal opportunity to participate. The mediator’s job is to manage that equity throughout. Any fears about the process being one of judgement and blame-shifting are overcome by this equitable approach.
  • Reality Checking: a critical part of mediation is checking – we say ‘testing’ – the reality of what the parties are saying. If one party says their only solution is a multi-million-dollar payout, reality testing will ask that party to consider how likely that is, what might happen if that reality does not eventuate and whether there might be another kind of reality they are willing to accept. In our strata mediations, part of the reality testing is assessing statements and concepts against our expert knowledge of strata legislation and process.
  • When it Comes To Strata, Few Things Are Absolute: as much as we would like to hope otherwise, strata is usually about generalities, not black and white scenarios. Hoping for an absolute solution to an ambiguous strata situation is fraught with peril and yet, an ‘absolute solution’ is what a legal proceeding invariably ends up being. Mediation considers the nuances and grey areas of strata and appreciates that outcomes might be compromises and concessions.

We have seen parties arrive for mediation and other alternative dispute resolution processes with arms firmly crossed, barely acknowledging their sworn enemies in front of them. And then we have seen those same parties emerge from the meeting space shaking ends, talking constructively with the other party about their next steps to affect the outcomes they have agreed to.

The mediation cynics reading this will scoff and say, ‘well that’s never going to be me.’

To which our reply is…well, we think this sums it up.

Contact us to work through your mediation scepticism and cynicism.

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