Mediation is not well established everywhere. In some countries, however, mediation is not a foreign concept nor is it necessarily viewed as a threat to lawyers. The law sometimes positively encourages parties contemplating litigation to consider mediation, and their representatives are obliged to a greater or lesser extent to explain mediation to them.
In those countries in which mediation is not well known it may be confused with arbitration and even with meditation. The law may not encourage mediation, and lawyers may feel threatened by it, regarding ‘ADR’ more as the cause of an ‘Alarming Drop in Revenue’ than as a process that might assist their clients to achieve more effective and earlier outcomes.
So how can an appreciation of the value of mediation be developed in the marketplace? The answer is a collaborative multi-stakeholder marketing effort.
Let’s begin with mediators. If they, and the institutions to which they are affiliated, stand in the marketing side-lines, focusing more on promoting themselves than the practice of mediation, the market is unlikely to grow optimally. Mediators know how to distinguish positions from interests, fears and concerns. So, they are well able to identify and address the interests of other stakeholders – Government, Judiciary, lawyers and, above all, users – both private individuals and organisations.
To secure referrals, mediators certainly need to market themselves and generally do so well. But when marketing themselves, mediators also need to market mediation, conveying an appreciation and understanding to users of why and how mediation can serve their interests. This means articulating a core value proposition for the use of mediation to meet the interests of everyone involved in managing disputes. That value proposition will inevitably vary according to the constituency.
Government and Judiciary
Generally, Governments are under pressure to provide access to justice for their citizens. Often standing in the way are obstacles, such as the length of time it can take to get to court and the costs involved in litigation and arbitration. Mediation offers a way to overcome such obstacles at much lower cost. Government agencies are also users and may be able to help fund marketing efforts if they can be persuaded that this will considerably lower the cost to the public purse of providing justice.
Lawyers’ interests range from a genuine desire to serve clients well to making money in the process. Their clients often simply want to resolve their differences quickly, privately and at as little cost as possible. In resolving disputes, lawyers often act as their clients’ gatekeepers, advising whether, when and how to achieve desired outcomes. Mediation can help lawyers service their clients’ needs in a way that reduces client costs and risks. Building such a reputation attracts more clients and makes business sense. Quote users in this regard. Users listen to other users.
The Global Pound Conference Series (GPC)[i] held in 2016-17 went a long way to identify what users of dispute resolution processes want when they seek to manage their disputes. The GPC data demonstrates a strong desire by users to resolve disputes early wherever possible and to retain control by negotiating outcomes themselves.[ii] Users want to be better informed of the options for achieving these goals – in other words, users are generally willing marketing targets. Find out how disputes are resolved in other jurisdictions and use case studies and examples of success to bolster your proposition. Users are persuaded by evidence that other users have applied mediation with success. The voice of the user travels far and wide. Most important of all, market mediation as a negotiation process. This resonates with users’ natural bias, as they negotiate daily. This helps “de-lawyerize” and de-mystify mediation, making it easier to understand and value.
The mediator provider market in most countries is notoriously competitive. If mediation service providers could collaborate to agree a plan to coordinate approaches to stakeholders to deliver educational programmes, share experiences and generate feedback, they would quite quickly start to market mediation effectively. As President John F Kennedy said: “A rising tide lifts all boats”.
If that collaborative plan could be co-branded and featured in professional websites presenting the value of mediation awareness events, it would openly demonstrate that mediators do as they teach. The work of the UK’s Civil Mediation Council (CMC)[iii] illustrates how many stakeholders have convened ‘to inspire all sectors of society to use mediation when managing and resolving disputes’ and to represent the industry.
A successful marketing effort and the facts to substantiate it need to be communicated to stakeholders. There are many ways to do this at micro and macro levels. For example, by:
- Talking to potential customers about how mediation can benefit them and their future;
- Offering an initial awareness programme free of charge as an investment in the field;
- Pitching mediation as a negotiation form, aided by a neutral facilitator;
- Explaining why the dynamic of a facilitator improves the quality of negotiation;
- Training party representatives in mediation advocacy skills;
- Establishing a mediation programme as part of a continuing legal education or continuous professional development program package (for lawyers, finance managers and others with professional compliance obligations);
- Offering to prepare a role play of a facilitated/mediated negotiation as a focal point;
- Conducting a programme together with third parties (a mediator plus one of the user’s law firms or a user from another organization, or all three);
- Encouraging in-house and external advisers to attend;
- Including deal facilitation elements, thereby encouraging business managers to participate;
- Inviting visible Government and judicial involvement.
To be credible ambassadors of mediation these initiatives must be led by professionals who have had training and experience of mediation, who speak with authority and who provide practical answers to questions and challenges put to them by sceptics.
Mediators and mediator provider organisations are often overzealous about mediation and are consequently at risk of losing sight of just how entrepreneurial and marketing-orientated they need to be in relation to the mediation market. Once a true market for mediation begins to develop, the services of mediators and mediator provider organisations are more likely to be used.
Felicity Steadman has been a professional mediator since 1989. She is accredited in South Africa and the UK and is an IMI Certified Mediator. Felicity mediates commercial and employment disputes and has conducted mediations in a wide range of organisations in the public and private sectors. Felicity trains mediators internationally and is Head of Faculty on the CEDR Mediator Skills Training programme and on the Conflict Dynamics Commercial Mediator Skills Training course in South Africa. She trains mediators and conciliators for the UN’s International Labour Organization (ILO), and has trained mediators and conciliators for the Independent Mediation Service of South Africa and the Commission for Conciliation Mediation and Arbitration in South Africa. Felicity is the author of the ILO’s Handbook on Alternative Dispute Resolution (2008) and co-author of Commercial Mediation: a user’s guide (2016). (www.felicitysteadman.co.uk)
Originally published via Mediate.com on July 17 2020. Republished with permission.