Mediation as “facilitated conversation”: an effective way to resolve disputes

NZ Lawyer speaks to Paul Sills, our Most Influential Lawyer awardee, about how mediators and arbitrators like himself enable conversations to resolve commercial disputes

To view full transcript, please click here

Paul Sills - WINNER Most Influential Lawyer

Speaker1: [00:00:13] Hi this is NZ lawyer TV, and we are here with Paul Sills, an independent mediator and arbitrator. Great to have you here with us, Paul.

Speaker2: [00:00:25] Great to be here. Jacqueline.

Speaker1: [00:00:27] So, Paul, I wanted to start by asking you to give us a bit of a background of what you do in the field of mediation and arbitration,

Speaker2: [00:00:37] So mainly I do commercial work. So my mediation work is typically around commercial disputes. And so I've been doing that for about 12 years now and sort of addition to my legal practice. And the same with arbitration and arbitration is typically used for commercial disputes, contractual disputes between parties. It's used a lot in New Zealand, in the construction industry so you'll see a lot of the arbitrators in New Zealand, like myself, have construction or experience, and that's where we do a lot of our work.

Speaker1: [00:01:13] Since you're focused on mediation for that number of years, what's one thing that you were able to discover in that time about the field that changed the way you perceive this aspect of dispute resolution?

Speaker2: [00:01:29] Interesting question, really, is that the power of getting the parties together around a table or on the screen, if you have to in the modern age to talk through the issues rather than falling back on what I was used to as a barrister, litigation, taking disputes to court or even taking them into arbitration. So the wrong the really key learning is lots of things. Lots of good things can happen if you can get parties around the table and help them and help facilitate a conversation between them.

Speaker1: [00:02:04] What is what are some things that you wish more people, I guess, in general understood about mediation.

Speaker2: [00:02:14] I think commercial parties look at it in slightly the wrong way, if I if I can put it that way, and that's understandable because it's an education thing, they look at it as them negotiating a dispute. And if they've tried that and it hasn't been successful, they will often question why bother going to mediation? What they don't understand and we need to educate the market on is when you add that third person, that facilitator, the head of the table or on the screen, that is helping the parties have the conversation that is and know listening and interpreting, asking questions and helping guide the conversation. That's very different from two parties sitting around the table trying to negotiate or two CEOs on the phone trying to negotiate together the parties, lump them all into the same and into the same area and think, well, we had a discussion about this. We couldn't make any headway. What is mediation going to do? So if I could change one thing, I'd like to change many things, but if I could change one, it would be an understanding that. A facilitated conversation is much different from a direct conversation a lot of the time.

Speaker1: [00:03:29] On that note, how can the legal profession as a whole? Have drive the adoption of mediation and other alternative dispute resolution methods in that way.

Speaker2: [00:03:41] A lot of us that starts at the top, what New Zealand does very well, what New Zealand government does very well is that legislates mediation into a lot of areas of life. So we have quite a number of statutes in New Zealand where mediation is actually either a compulsory part or a key part of dispute resolution. Employment law isn't really obvious example. You know, the vast majority of employment disputes first go to mediation with the government ministry. That is that that runs out. And so we do we do that very well. The other big place where you get a lot of direction for mediation is through your justice system and the encouragement of the justice system to use ADR or use mediation as an effective tool in dealing with disputes overseas.  

United Kingdom, for example, that the parties can be directed to go to mediation a lot more frequently. There can be consequences for not going to mediation. We don't quite have that same level in New Zealand. But the active encouragement of the judges to think about it and to encourage parties to try it is really important. And then from the legal profession, it's just, again, the encouragement of the clients to try mediation and I think try it earlier than we traditionally do. Mediation for many years was always came quite late in the life of a dispute, and often it was done quite close to a trial starting in court. What we're seeing now is a slow shift away and parties being more willing with the encouragement of their advisers, lawyers, accountants, et cetera, to get round the table earlier, which I'm a big fan of. As soon as you've got a dispute, as soon as you think that a relationship is in trouble, get round the table and have a conversation about it.

Speaker1: [00:05:43] Since I over the past year and even into this year, I guess in general, whether that's in court or in commercial situations, we've seen that the covid-19 pandemic has impacted how the profession in general operates and I guess I wanted to ask you, is how the pandemic affected mediation and dispute resolution in this period in NZ and wherever else you've worked?

Speaker2: [00:06:18] That's a good question, because New Zealand is quite different from the rest of the world in this respect, because we've had such a relatively low number of community cases. For example, on our lockdown's have been quite brief compared to, say, the United Kingdom or use as an example. We've seen quite different. We've seen quite different responses to it. So New Zealand, like everywhere else in the world when the first lockdown occurred, had to very quickly change its processes. So the courts, for example, were doing a lot of work and how to bring things online. And we will started appearing in court online or on the telephone. But because it was reasonably short lived only for four weeks, we didn't get into the depth of that, that a lot of the rest of the world has. And it's the same with mediation. So initially, initially, people stopped mediating and they said, we'll wait and we'll see. They when they realised it would carry on for a while and these disputes needed to be resolved. People turned online to the online platforms like Zoom and started mediating online. And there was some hesitancy, some reluctance. And that as people it's really a technology driven thing, you know, how will it be? What will it be like? Mediators were thinking it's not going to be the same as sitting around the table with parties.

Speaker2: [00:07:39] Parties are thinking it's going to feel artificial, but actually it's worked really well. So New Zealand started down that pathway. We haven't developed our online work as much as the rest of the world. So take America, take the United Kingdom, lots of other places around the world where everything has been done online. So colleagues, mediation, colleagues of mine in the UK since March last year have done all of their work online. And they are they are now complete professionals and very comfortable with working on an online platform, and I found it to be very effective. The success rates of mediation have not really changed because people aren't sitting around a table in person, which has been really interesting. In New Zealand, we've had a bit more of a hybrid situation where we've done some work online and but we're now doing most of our work back face to face around the table. So, yeah, New Zealand's had had a not quite hasn't had to respond in quite the same way as the rest of the world.

Speaker1: [00:08:47] So, Paul, thank you so much for taking the time to speak to us about this important area of dispute resolution, and congratulations once again on your amazing achievement. And we're looking forward to what else you're going to do in the near future.