MEDIATION: WHAT IT SHOULD & SHOULD NOT BE by: Juliet Fenn, Mediator Chanda Glidden, Mediator & Attorney Christine Bodden, Attorney-at-Law

As we explore in depth in the September 2022 edition of Lawyer Monthly Magazine, mediation and other forms of ADR are fast growing in popularity around the globe. While effective as a cheaper and less combative alternative to litigation, however, mediation is not guaranteed to succeed; it depends on the skills and insight of an experienced mediator to help all parties involved reach a satisfying solution.

This month, we hear from Juliet Fenn and Chanda Glidden, who are both accredited mediators at Quality Law and Corporate Services. Along with their colleague, Christine Bodden, Attorney-at-Law, they will take us through a 360-degree view of the mediation process in the Cayman Islands, a jurisdiction with a population of approximately 70,000.

What does the process for mediation typically look like in the Cayman Islands?

Juliet:?As a jurisdiction, the Cayman Islands has built a sound and mature judicial reputation with regards to litigation, leaving the culture of mediation still in its infancy. This is unlike our larger neighbours in North America and Jamaica, where mediation is a standard practice for dispute resolution.

However, in the last decade we have seen the courts adjust their model and make a concerted effort to encourage mediation in family matters. Parties referred to mediation by the court will have the option of using court-appointed mediation free of cost, as well as the option to appoint a private mediator. The success of introducing mediation to the family court over the past few years has spurred discussion on the widening of the resource in other areas of dispute.

Mediation in the Cayman Islands is finally becoming more popular for an increasing number of people as a means of dispute resolution. Indeed, the family court will expect parties to have utilised the services of a mediator before applying to the court for resolution.

As mediation is not commonly offered as the first option in civil matters and any that are conducted are done so privately, there is no clear record as to how many mediations are taking place annually or whether there is a rise in the trend. A big part of the issue we face is that many people still do not know what mediation really is or how it can benefit them.

What is mediation – or, more importantly, what is it not?

Chanda:?‘Compromise’ – that is how it is often described. To me, however, this is an oversimplification of the process. Additionally, where you have a spouse or business partner who has been biting their tongue in endurance of another person’s behaviour for years, compromise can become a dirty trigger word fuelling resentment and victimised feelings. I often describe mediation as creating an outcome that everyone can live with.

The success of introducing mediation to the family court over the past few years has spurred discussion on the widening of the resource in other areas of dispute.

My first experience with mediation was 14 years ago. A magistrate sent me into a room with my abusive ex and his overly aggressive attorney to mediate visitation arrangements for our young child. The whole time I sat there with his attorney demanding the terms while I was forced to negotiate like crazy for my rights, as well as the wellbeing of myself and my child. The whole time I was silently screaming: this is not mediation!

What can clients expect from their first mediation experience, and how do you help your clients prepare?

Christine:?It is generally accepted in family law practice that mediation will be the first point of order for attempting to settle a matter. Often at the first appointment hearing the parties will already have determined whether they are open to the mediation process and will have instructed their counsel to seek orders for mediation at the onset. At this early stage of proceedings, it has become the norm for the judge or magistrate presiding on a matter to encourage the mediation process in the first instance with the court-appointed mediator, which has proven to be a successful avenue in even the most initially contentious matters.

The process starts with acquiring background information regarding the parties. That information is then forwarded to the court-appointed mediator, who subsequently coordinates a Mediation Information and Assessment Meeting (MIAM) with the parties. This process will normally include providing the parties with forms (including financial disclosure forms) for their completion before the first actual mediation session.

Next is the actual mediation, which can often run from one hour to half a day. In the event that the parties are very contentious, the mediator can decide from the initial MIAM to hear each party’s concerns separately in individual rooms so that each can be heard without disruption, which assists more expedient resolutions. The lawyers normally step back at the mediation stage but are on hand to advise their client as required and then more actively again at the stage of drafting and completing any orders by consent, which will ultimately then require signoff by the respective judge or magistrate as well.

Chanda:?With me as their mediator, the parties can expect to be heard and to answer some thought-provoking questions. I typically request that mediation clients reserve 90 minutes to three hours for their first session to allow ample time for discussion and breaks if things get too heated.

Often at the first appointment hearing the parties will already have determined whether they are open to the mediation process and will have instructed their counsel to seek orders for mediation at the onset.

What role does mental health play in mediation? How can mediators accommodate people suffering from stress or mental health issues?

Chanda:?Due to its flexible nature, mediators can offer versatile, comfortable and neutral venues for the participants to hold their discussions. I have hosted sessions in gardens and luxurious office suites that put clients much more at ease before the hard conversation started. Additionally, with the aid of technology, participants that tend to have more hostile communication can opt for a virtual session that will include break-out rooms lessening, the anxiety that can arise from in-person confrontations.

What role do lawyers play in the process?

Chanda:?A big one! Lawyers can make or break the entire process. Let’s face it, outside of advising on the law, lawyers speak in terms of billable hours, and there is no better way to accumulate them than with lengthy litigation. This flies in the face of a what mediation stands for in terms of a speedier resolution.

Likewise, when a lawyer comes into mediation with the same ‘win/lose’ mindset attributed to traditional ligation it can threaten the integrity of the session. You have to be really honest with yourself about why you are there; you have to keep in mind that as a lawyer in a mediation setting your role is to advise your client on the law, so that they can make the best decision for themselves.

Most clients do not care about the witty rebuttals or the case law you cite. They just want to go home with a conclusion that leaves them feeling safe, financially sound and mentally at ease. If you can help them achieve that in a quick and cost-effective way, you will have their repeat business and be able to turn your attention to other matters that may require more of your time. Needless to say, it does wonders for managing your workload.

What are some of the most memorable or rewarding mediation cases that you have worked on throughout your career?

Chanda:?An employment matter, co-mediated by the lawyers, that settled in less than 30 minutes. The employer was refusing to pay severance and accusing the employee of misconduct that they fiercely disputed. I was representing the employee and quite early into the session I firmly but gently asked the employer a simple question:?“What do you need?”?He immediately confessed that he wanted an apology because he felt taken for granted. Upon hearing him out, the employee had no hesitation in providing the apology. 15 minutes later the apology was given, the agreement drafted and the matter resolved.

What inspired you to become a mediator?

Chanda:?For me, it was a combination of the horrible first mediation session with my son’s father that I mentioned earlier and the self-discovery that this was a natural talent. I have always been someone who enjoys helping others through difficulty. At one point as a young girl I wanted to be a judge. In my mind it was a cool way to ‘help’ people by resolving their issues for them when they could not do so themselves. However, by the time I was 14, I noticed that I had a wider ability to seek out the truth and apply it to the wellbeing of others. Throughout high school and university I was always on the student council or acting as a peer counsellor. Looking back, I was consistently a liaison that both the faculty and other students could trust to help them resolve interpersonal issues on campus.

As I gained more life experience and watched clients go through the rigors of litigation where there can only be one winner, I realised that both parties were often left emotionally and financially exhausted by the process, their relationship worsened and one party was usually left completely defeated in the end. I also recognised that in some cases where judges may be sympathetic to the plight of one party, being that they were bound by the confines of law there was often little they could do. In contrast, where I was able to witness the parties being able to choose and agree their own outcome, I saw how it left them feeling empowered, relieved and happier with the conclusion. So as a mediator, I do not need to make decisions for others; they can do so for themselves. I just provide the right environment for that to happen, and that is far more meaningful of an experience for everyone.

Due to its flexible nature, mediators can offer versatile, comfortable and neutral venues for the participants to hold their discussions.

Are all mediators lawyers?

Juliet:?I believe it is important to stress that, as a mediator and non-lawyer, I am able to avoid the legalese that can be confusing to the parties, offering equal support to both parties to ensure they feel listened to and understood. Lawyers can be intimidating, and as mediation is not a legal process it certainly does not need a lawyer to preside over it! In fact, it is important to dispel the myth that all mediators are lawyers – we are not! You do not have to be a lawyer to be a mediator, and trust me, not all lawyers can be mediators – it is a specialised area that requires specialist training.

Having been through mediation myself back in the 90s, I can certainly tell you what mediation should?not?be. Thankfully, mediation has come a long way since then and is now becoming accepted as a means of alternative dispute resolution. In family disputes I bring to the table a non-legal aspect that my clients are grateful for; I obviously do not get into the legal aspects of what they could achieve in court, because not only am I not qualified to do so, but at the mediation stage, I do not believe it is relevant or important. I am there to be the conduit between the parties and to give equal support to them both. Having a non-lawyer mediator can also help the parties feel less intimidated by the process.

What is it like being a mediator?

Juliet:?Becoming a mediator was a natural process for me. As an empath I am a good listener and communicator. I am also very creative, and being a mediator takes a fair amount of creativity. Being able to see things that may appear obvious is a talent and quite often the obvious is what needs to be seen by both parties. However, the obvious is not always the solution, so creativity plays a part. I have been involved in amateur dramatics my whole life and playing the part of a mediator is a lot like playing a role in someone else’s life story. As mediator training involved a great deal of roleplay both as the mediator and mediated, I think I am quite good at it!

My own experience of having mediation prior to a divorce in the 90s was certainly not an experience that I would have recommended. Had I known then what I know now, the divorce experience could have gone a lot smoother than it did.

As a mediator I do not decide the outcome, but rather help the parties involved to focus on what is important and to see the bigger picture. We are all guilty of only seeing things from our own perspective, but a mediator helps both sides to see through the looking glass beyond their own reflection.

Chanda:?It can sometimes feel like putting together a jigsaw puzzle without knowing exactly what the picture is. But that is the beauty of it: getting curious and digging down into what is and is not being said. Once you find the right thread to follow it can lead to all kinds if interesting places and possibilities for solutions.

What mediation trends do you foresee for the next one to five years?

Chanda:?Although mediation is gaining traction, it is still very much an ’If you know, you know’ option in the Cayman Islands because of the easy access to judicial remedies and the strong litigation culture for civil disputes. That said, with a recession predicted on the horizon, the stress induced from a global pandemic and other worldly events as well as more access to information than ever before, I predict that people will soon be looking for fast, affordable, creative ways to resolve their issues – which mediation is perfectly poised to provide.

Do you have any closing comments to make about the suitability of mediation for effective dispute resolution?

Juliet:?The breakdown of any relationship is stressful enough on its own. A skilled mediator can take the argument away from each party whilst assisting both sides to explore the different options available before hopefully reaching a resolution. Whether it is a property dispute or arranging childcare and visitation, quite often a mediator is overlooked as an option to avoid all the fighting and bad-mouthing that can happen when a couple separate and have assets to divide or children to care for.

Of course, there are cases that are not appropriate for mediation, such as cases of abuse, mental illness or cognitive impairment, but for the most part mediation can be utilised for a number of varying disputes or disagreements. This makes mediation a frequently successful alternative to the courtroom. All it takes is a willingness to listen, an open mind and a good, qualified mediator.

Being able to express what you want to achieve in a confidential setting, and knowing that the mediator is working in the best interests of the family dynamic rather than for a single side, is paramount to what we do at Quality Law and Corporate Services.

Juliet Fenn, Mediator

Chanda Glidden, Mediator & Attorney

Christine Bodden, Attorney-at-Law