At a first glance, the mediation process appeared to a third year law student as an informal and unstructured “quick-fix” to reach a compromise in legal disputes where the rigidity of the court procedure is unable to provide a tangible (or affordable resolution). However, a day of role-playing and brainstorming around the alternative avenues of resolving conflict offered by the mediation process swiftly dissolved this simplistic interpretation. Instead, as a student half-way through her law degree at UNSW, I was exposed to the dynamic nature of the mediation process that effectively enables mediators to accommodate the concerns of conflicting parties within a cooperative and relaxed environment in order to facilitate a mutually beneficial solution.
Whilst I was only able to experience one day of the intense five-day mediation training directed by the Australian Disputes Centre, it was a sufficient opportunity to provide me with valuable insight as to how the conflicting positions of both parties can be managed by a mediator so that the ‘win-lose’ doctrine of judicial remedies is discarded in favour of a mutually beneficial (‘win-win’) outcome. This, I discovered is achieved by encouraging the parties to shift away from bargaining based on the incompatible positions of the parties, to negotiating based on the identification of their respective interests. I was particularly interested to learn how the objectification of the relevant problems allows parties to abandon their personal insecurities and consequently pave the way toward more efficient negotiations by establishing a harmonious understanding of the issues involved.
After identifying the matters to be discussed and more deeply exploring the core issue of the mediation, a willingness to develop possible resolutions is next on the agenda. Contrary to my initial belief that the mediator essentially acts as judge does in a court procedure, I discovered instead that this step actually necessitates the mediator taking the ‘back-seat’ whilst the parties brainstorm and develop possible options. This limited involvement of the neutral mediator becomes an effective mechanism of emboldening the parties to take ownership of the mediation process and personalise the possible solutions. The mediation process subsequently concludes with the evaluation of these options and if successful, a determination of the final agreement.
Despite the duration of the mediation process being comparatively shorter than the traditional legal procedure engendered by the court environment, I now realise that its rapidity and informality does not diminish its effectiveness as a valuable tool of alternative dispute resolution. The flexible structure of the mediation process allows parties to adopt a collaborative approach of resolving conflict away from the adversarial and stringent nature of litigation in the courtroom and toward consensus in a collaborative environment. As a law student, I was surprised by the ability of mediation to assist in resolving a wide-range of conflicts. I realise that the mediation process can be highly successful way of managing conflict in both commercial and social environments, developing the ability of parties to identify and address the psychological and social motives of conflict and litigation. As such, I am a strong believer that the mediation process should be positioned more centrally in legal education and by extension, in our justice system.
Law Student at UNSW