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Blow me down; there are some passionate feelings out there beating in the breasts of mediators about mediation. Colin Wall, president of the Chartered Institute of Arbitrators, doyen of mediators in Hong Kong, got to it in his excellent lecture the other day. He is a 鈥渇acilitative mediator鈥�; he takes his barge pole to the 鈥渆valuative mediator鈥�.

The tide has come in for mediation in the UK. Folk keep telling me that the courts now make mediation obligatory; that鈥檚 incorrect 鈥� they don鈥檛. Never mind, it is here and in use. What always happens with any young 鈥渢hing鈥� is a debate about what it is and how to do it. Then someone will want to make up rules, 鈥渋nstitutionalise鈥� it, then someone will want to make disciplinary rules to punish those who don鈥檛 comply with some institute鈥檚 rules. So here we are in the UK with a tug of war about mediation. There is a contest 鈥� several, in fact. One of them is facilitative mediators vs evaluative mediators.

Look, a mediator is a person volunteered into place by the disputants to help them with the dispute; that鈥檚 all. Unlike an adjudicator, arbitrator, judge, this mediator person makes no imposed or binding decision. It鈥檚 different. It鈥檚 just simply a third-party invitee. When the UK started training these 鈥渋nvited helpers鈥�, the model taught was imported from the USA.

In short, it was to assist the parties in finding and analysing options for resolution. The invitee was not there to make recommendations, nor give advice, nor an opinion on the dispute, much less say or predict what a court would do in the case. This mediator 鈥渢hingy鈥� was in charge of the process while the parties were in charge of the outcome. Sounds good, doesn鈥檛 it?

But the UK construction industry gave it the elbow. Try as we might, it didn鈥檛 catch on. It did do better in areas such as family law and divorce settlements, also personal injury. In construction we went for adjudication since it decides contractual rights, and it works.

But mediation still figures in construction, especially if the dispute goes onwards and upwards from adjudication.

I challenge, I probe, I test. I think that鈥檚 what often works and I don鈥檛 give a damn that other mediators do it differently

It so happened that, some years ago, yours truly began to accept requests to be the mediator. I had done some training, mugged up on the bumf and watched others. Then in my first appointment I gathered X and Y together, let them each have their say then went into what we call 鈥渁 caucus鈥� first with X alone. Blow me down, within half an hour, X鈥檚 team was asking me what I thought, and was this a good or bad argument, point, fact, evidence and/or legal principle? Oh dear 鈥�

Credit: Simone Lia

I stumbled around; I was not supposed to give an opinion. I was only here to facilitate a settlement. Damn it, I would be thrown out of mediator appointing heaven if I went this way. I ducked it. Fed up, I refused any more appointments. But I crept back, took another appointment. Same thing happened: 鈥淲hat do you think?鈥� said party A in caucus. This time I damn well told them. Of course I didn鈥檛 tell party B what I told party A. Instead I told party B privately what I thought of their own case. Or rather I 鈥渞e-evaluated鈥� afresh what they said about their case. It worked well.

Since then, when asked by one party what I think of their position, I tell them. But what I don鈥檛 do is get both parties together and make some form of announcement about the values of their case. Giving an opinion in private to X and Y separately really does push things towards a settlement.

Now then, some people call this approach 鈥渆valuative mediation鈥�. I don鈥檛 鈥� I call it re-evaluative mediation. I tease X to show me the strengths of his position and I challenge, I probe, I test. I think that鈥檚 what often works and I don鈥檛 give a damn that other mediators do it differently. I have never found one mediation the same as the next. Save that they are all exhausting and exciting.

The so-called tug of war about mediation has led the so-called facilitative mediators to label the 鈥渙ther lot鈥�: 鈥渕uscle mediators鈥�, 鈥淩ambo mediators鈥�, 鈥淎ttila mediators鈥� or mediators who will knock some sense into X and Y by banging heads together or twisting arms. So called us evaluative mediators label the other lot as 鈥渢ree-huggers鈥�, 鈥渢ouchy-feely鈥�, 鈥減otted plant鈥� mediators. But when I talk to the facilitative camp, I ask if they probe X鈥檚 case in private and so too Y鈥檚 case and they all (in my skinny survey) say they do. True, the style of probing may differ, but mediation in the UK works ever so much better now than it once did. A mediator who probes, questions, challenges is evaluating or causing the customers to re-evaluate. If that鈥檚 what is meant by a 鈥渇acilitative mediator鈥�, I is one.