The Nationwide Academy for Dispute Resolution

MEDIATION

What is mediation ? Disconcertingly, the answer is that "Mediation is many things to many people." You might believe, especially if you have heard about or been involved in a mediation process that you know what mediation is. What you will have seen or heard about is likely to have been a particular model of mediation. Even if that mediation model was not suitable for your business requirements you may be surprised to learn that there are mediation models specifically designed to cater for the needs of industry and commerce.

Early western practitioners tested a range of mediation models with varying degrees of success. Experience has shown that there is a need for a variety of mediation models. The needs and expectations of the people involved in commercial disputes are quite different from those of the people involved in social disputes. The way mediation operates differs from country to country. The US for example has introduced legislation which mandates the use of mediation. This affects the way mediation is conducted in the US.

Which Mediation Model is best for Commercial Users ? Academics have identified in excess of 28 models of mediation but these can be grouped into 4 basic models.

• THE ORCHESTRATOR: This is the basic NADR Model. This is the most modern mediation style. The Orchestrator : Asks many questions about the facts, evidence and jurisprudence in the case : Uses his questions to probe the parties' positions and perceptions : Tries to conciliate : Focuses primarily on the process : Gets the parties talking about liability, damages, costs, verdicts in the area, risks, high-low-average values for the case, perceptions of the community, e.g. motorcycles and alcohol use : Employs multiple joint sessions and assists and encourages the parties to communicate directly! The Orchestrator does NOT use coercion or "arm twisting" to force settlements. He is the "Guardian of the Process". If he can not mediate a settlement, he will mediate the process so you always obtain some results from the mediation.


• THIRD PARTY NEGOTIATOR: Sometimes used in the UK. The Third Party Negotiator is the original "shuttle diplomat". After the first joint session, this mediator separates the parties and keeps them apart. He carries the parties' positions back and forth, filtering and interpreting them the way he thinks best to achieve a settlement. This is an older style of mediation. This style has a problem with parties' perceptions of his neutrality. Parties often begin to mistrust this type of mediator because he is constantly presenting or arguing the other side's position to them. This model of mediation is popular in International Public Mediations and was employed in the Camp David Israeli / Palestinian Negotiations.


• THE DEAL MAKER: Often used in the UK. The Deal Maker also follows a "shuttle diplomat" style and intentionally keeps the parties apart. The Deal Maker is extremely manipulative and may even deceive one or all parties in order to achieve a settlement. He will formulate his own solution to the dispute and then pushes very hard to sell it to the parties. He may attempt to browbeat, intimidate, or coerce a party into accepting that deal. The Deal Maker believes that he knows what is best and most appropriate for the parties. This is the oldest form of mediation and originates out of the labour field. This type of mediator has the greatest problem with the parties' perception of him. He is usually mistrusted by all the parties. Many parties will only use him once. The Deal Maker operates on the basis that the "end justifies the means". This type of mediator confuses mediation with arbitration or acts as a settlement judge. It is popular with lawyers and ex-judges turned mediators.


• THE RESCUER: The Rescuer believes and states that, 'court is the worst place for people to be'. He tries to keep parties out of court and away from lawyers at all costs. Often found in "community mediation centres". The Rescuer usually follows a style that does not allow or severely restricts the use of private sessions with the parties. This greatly reduces their effectiveness. The Rescuer Model is commonly adopted by social workers, psychologists, counsellors or other people without legal or claims training. The Rescuer rarely has the knowledge, education, mediation training or expertise to mediate serious commercial, personal injury or insurance cases. Often times the Rescuer Model is excellent for small cases such as neighbourhood disputes involving for instance a dispute about a dog barking and for juvenile restitution matters. The Rescuer is frequently very critical of the courts, attorneys and insurance companies and often engages in "court bashing" or "lawyer bashing".

NADR INTEGRATED DISPUTE RESOLUTION SYSTEMS

NADR has employed the Orchestration Model for many years but has further refined the technique in a number of distinct ways. NADR is committed to a range of ADR services including Arbitration, Adjudication and Mediation and hybrid variations of all three, tailored to the needs of those it needs. NADR caters for :-

• employer / employee disputes with schemes for specific employers.
• construction disputes with Dispute Review Boards providing mediation/adjudication/arbitration services.
• general contract and tort mediations including court ordered mediation.
• supply and delivery contract mediations and adjudications.
• charter and hire contracts adjudication/arbitration services.
• insurance claims settlement.
• intellectual property disputes.
• financial services disputes.
• internet consumer/supplier adjudications.
• adjudicated, arbitrated and mediated multi-jurisdictional disputes.