You don't have to be a lawyer to be a good mediator
Why does anybody want to be a mediator or co-mediator? Who are these people? Different books and organisations may have different definitions of a mediator.
The following is quoted from Hong Kong’s Mediation Ordinance (Cap 620), which became operative on January 1 this year: “[Mediators are] one or more impartial individuals [who], without adjudicating a dispute or any aspect of it, assist the parties to the dispute to do any or all of the following: (a) identify the issues in dispute; (b) explore and generate options; (c) communicate with one another; and (d) reach an agreement regarding the resolution of the whole, or part, of the dispute.”
In most cases, only one mediator assists the parties to resolve their disputes. They come from all walks of life. Contrary to common belief, possessing a law degree, albeit useful, is not essential to be a competent mediator.
In fact, the majority of mediators are non-lawyers. Some are professionals, such as engineers, surveyors, architects, social workers and medical doctors. Others are administrators, office workers, salespeople and retirees.
In this article, the mediators and co-mediators I refer to are general, not family, mediators.
Becoming an accredited general mediator involves taking a 40-hour course. Different courses are run by various organisations and not all are of the same standard. Fees vary widely. Anyone interested should compare the reputation of these organisations, the qualifications of the trainers and coaches, and the cost before enrolling.
After studying the course, candidates must pass two simulated role-plays – where they act as the mediator – to become an accredited mediator. In the past, three reputable organisations conducted these assessments: the Hong Kong Academy of Law, the Hong Kong International Arbitration Centre and the Hong Kong Mediation Centre. A new organisation, the Hong Kong Mediation Accreditation Association Limited (HKMAAL), set up in April this year, has taken over this task of assessment. The first HKMAAL assessments were held in July.
The HKMAAL has also laid down guidelines for mediation course providers. Only candidates from courses which follow the guidelines are accepted for assessment. Once a candidate has passed two simulated role-play assessments, he may apply to be included on the HKMAAL Panel List.
Since mediation is more about practice than pure theory, a newly accredited candidate has to gain practical experience to become competent. Some organisations assign cases that are referred to them to their panel mediators. Another way is to join schemes, such as Lands Tribunal building-management cases.
A good way to train newly accredited mediators is to develop a system whereby experienced mediators take assistants, much like trainees and pupils in the law profession. Without a formal “assistant” or “pupil” mediator system like the one practised in the UK, it is very difficult for experienced mediators to take assistants. It is essential for trainers and trainees to know each other well to develop trust. Another hurdle is that not all parties will agree to this arrangement for various reasons, even though it does not cost them any extra money.
It is impossible for a mediator to have substantive knowledge of all trades and professions. In some complicated cases, having co-mediators is beneficial. For example, an experienced mediator – usually the lead one – will pair with someone with special knowledge of the matter in dispute. This person does not have to be an experienced mediator. Using his professional knowledge and background, he can complement the other mediator and contribute positively to the mediation process. The lead mediator will brief the other mediator on the facts and technicalities of the case, and help to generate doubt creation and reality-testing questions.
Two mediators of different races, genders, ages, financial backgrounds and cultures can also help win the trust of the parties if their disputes involve these issues. The two mediators should also know each other well enough to feel comfortable in sharing mediation. Their personalities and skills should complement each other. Co-mediation lightens each mediator’s workload. They may also discuss and consult each other during the mediation. The less experienced mediator may learn new skills and techniques, and even receive performance feedback from the experienced mediator at any time during or after the mediation.
Who make good mediators? A born mediator is friendly, sensitive to others’ feelings, willing to help, flexible, positive, confident and humble. A well-trained one should be a good listener, but able to keep secrets. He can think fast and is creative, a good communicator and negotiator. He is not judgmental and does not impose his value system. If you feel you have most of these qualities, you can look up the HKMAAL website and undergo training. You will be most welcome to join the panel.
James SP Chiu is a member of the Hong Kong International Arbitration Centre’s Hong Kong Mediation Council Committee and a vice-chairman of its General Mediation Interest Group.
The information contained in this article should not be relied on as legal advice and should not be regarded as a substitute for detailed advice in individual cases. If advice concerning individual problems or other expert assistance is required, the service of a competent professional adviser should be sought.