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My Journey to Mediation

Since 1995, the majority of my professional time has been working as a forensic accountant and advising businesses in terms of structures. Also, I have advised and assisted in the acquisition, sale and merger of businesses.

Working as a forensic accountant has involved providing opinions in relation to financial matters, predominantly in relation to family disputes and commercial disputes. Typically, that would involve me undertaking valuations of companies and businesses, economic disparity calculations and assessing economic loss.

Most matters settle before hearing. Often, the forum which leads to a settlement will be a formal mediation. I have attended hundreds of mediations (acting as an expert for one of the parties) and observed numerous mediators in action, including some of New Zealand’s top mediators.

One of the roles of a mediator is to facilitate the development of creative ideas to address the various roadblocks that inevitably arise during mediations. Often I would be instrumental in developing creative outcomes that would work for both parties.

However, developing creative ideas is not something that is limited to mediations. In my role advising businesses in terms of business structures and sometimes in relation to establishing, buying/selling, and merging businesses, such will often require creative thinking in terms of developing outcomes that benefit both parties to a transaction. That is a skill that I have always had.

Many years ago I was appointed by a large public company/union as an independent reviewer pursuant to s.34 of the Employment Relations Act 2000. My role was to determine whether information requested by the union, which the company did not want to provide on the grounds that such was commercially sensitive, was indeed commercially sensitive and, if deemed such, to provide commentary on the information in a manner that would not breach the confidentiality.

I met separately with the company and the union and then together with both parties, in order to establish an agreed process. Each party separately shared with me what they sought to achieve from their bargaining, and it became clear that there was a significant overlap of interests.

I suggested to each entity that I considered that the other would benefit from hearing what the other party sought to achieve and I brought the parties together to enable that to occur. 

The outcome of that meeting was that they settled their differences such that I no longer needed to prepare a report on the commercially sensitive information.  This demonstrates what can happen where dialogue is promoted via a structured process. 

A key to most successful mediations is being able to promote creative outcomes that address the interest of the parties and being able to identify the real cause of roadblocks to settlement.  Sometime the cause of the roadblocks will be because the parties have not fully understood the effect of proposals made or because, given the nature of the dispute, what would seem to be minor matters take on more significance than is logical. 

In these instances, the parties will benefit from working with a mediator who, whilst having empathy, is also relatable and able to give things a different perspective, often by reframing matters in a manner that is more relevant. 

In my role acting for so many parties in disputes, I have observed first hand the roadblocks and how successful mediators identify and address such. 

In terms of roadblocks, these can take many forms.   

One matter that I mediated involved business colleagues who had fallen out.  The fallout had resulted in violence and there was a significant power imbalance.  Given the violence, the mediation occurred without the parties being physically present, although their representatives were in the room.  As matters turned out, it became clear that one of the parties simply could not “concede” anything for the reason that they considered such would mean that they were showing weakness to the other party. 

This issue can manifest itself in many ways, including parties not being able to agree a settlement because they consider that such would represent a “win” for the other party (notwithstanding that this might not be the reality of the situation).  

The first step in addressing such issues is to recognise the problem, and then, on a one-to-one basis, reframe the outcomes in a manner that might address that issue.  That is what I was able to do in the mediation that I am referring to. 

The concept of the other party “winning” can be particularly relevant in relationship property matters where one partner feels that they have been dominated or otherwise mistreated during the relationship.  The remedy in those cases is to emphasise with the disgruntled party and to help them to focus on the future benefits that will arise from a settlement, namely a fresh start away from the domination (whether or not the domination was real or just perceived). 

As noted above, the vast majority of cases settle before hearing.  I put this down to numerous factors including: 

  • The document discovery process; 
  • The process of preparing formal briefs of evidence from witness of fact and experts which highlight alternative perspectives; 
  • The parties feeling the financial cost of litigation along with the stress of that process; and 
  • The parties wanting to “move on”. 

The benefit of mediation is that the parties are given the opportunity to, at a much earlier stage (and even at a late stage), go through a process that enables them to hear the other side and, with the benefit of the mediator and counsel, evaluate their position, and become open to achieving a settlement to provide certainty and move on with their lives. 

I have been privileged to have assisted so many parties through this process as an expert and, more recently, as a mediator.  I embrace that process and consider that my skills assist parties to reach solutions to enable them to move on with their lives.