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Deluded or excluded: deciding who’s a good mediator

by Matthew Rushton on 08 Nov 2017
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In a saturated market, many believe they possess the training, background, analytical capabilities and interpersonal skills to be a best-of-breed mediator. But they’re not.

Are these individuals deluded or simply excluded? If the latter, then who makes this market, and on what basis?

One route into this question is via another, arguably more esoteric but equally unregulated profession: that of the professional artist. As befits a $45bn market, the artworld has some rather better thought-through answers to the related but more challenging question of “who decides what is good art?”

In both markets the product in question is abstract and subjective. How the art market nails down abstractions to arrive at a consensus of quality and reputation perhaps offers a glimpse into what, and who, might be driving the mediation market.

Post-college, art graduates start at zero: they lack the proxies for quality – a law firm or chambers brand, an illustrious former career – that carry new mediators. Filling that void is a notional process known as validation.

In mediation circles there’s little discussion of validation, but validation in the artworld is the magic that transmogrifies a can of human excrement, for example, into museum-quality art with a $100,000 price tag. While not all aspiring mediators require so radical a transformation, it’s a process that is nevertheless at work in the mediation market, but which tends to be overlooked in everyday marketing.

Validation

Let’s look at validation more closely.

Sir Alan Bowness, director of the Tate Gallery (1980-1988), saw validation as a progression from attracting the attention, and generating the acceptance of, peers, then serious critics, then collectors and dealers, and lastly the general public. These are the voices that define the consensus presented as rungs to be climbed in sequence.

Since then, the market has moved on, and the process is ever-more complicated. Turner Prize winner Grayson Perry elaborated this process in the Reith Lectures in 2013. He added art fairs as an important new validator, but also proposed a hierarchy which curators now dominate. In times gone by it was the commissioners – the patrons – who defined taste, style, originality and skill, and demanded their commissions reflected the same back on them.

Besides demoting critics and promoting curators, Perry identifies a chorus of voices including collectors, dealers, critics, museums, art fairs, sale prices, and private views each adding a “layer of patina that gradually builds into a reputation.”

Mediation

Now back to mediation.

Per Bowness, the approbation of peers was without doubt a formative pillar of many a UK mediation career. The self-selecting group now known as PIM senior mediators, formed in 1999, retains a surprising grip on the mediation appointments market with a very substantial market share. Its dwindling importance 18 years on is demonstrated by the fact that its small cast of members includes the deceased and those no longer practising. No matter; it served a purpose by reflecting glory-by-association on those in the marketplace in the days before Woolf.

Who, then, are the “serious critics” in this market? If we delete the word “serious” I’ll admit to having been one between about 2000 and 2003 when writing for the Legal 500, which, alongside Chambers & Partners makes a qualitative assessment of the market published annually. In more recent years, publications like Who’s Who Legal have added their research on mediators worldwide to a growing pool of publications.

While there were those willing to lay responsibility for the wreckage of their mediation careers at my door, I’m inclined to think that these publications reflect – or at least aim to reflect – the market as it stands, rather than define and make the market. As such, they represent a voice in the in the validation process, a layer of reputational patina, as Perry might suggest.

Who, then, are mediation’s dealers, and what do they do? The dealers, I’d suggest, are the ADR providers, the panels, the chambers, the institutes and societies that offer mediators to the market and generally charge an admin fee or percentage contribution from the mediator for doing so. A good dealer, as Perry notes, can have a powerful effect on an artist’s reputation just by association and inclusion in a reputable stable of talent.

ADR Providers

The same goes for ADR providers. Where the better providers and better art dealers demonstrate their worth is in the care with which they nurture careers. In the art dealer’s case, it’s a question of placing works in respectable collections – in public collections, for example, which drives up the price of works available on the private market. Dealers are also notoriously sniffy about collectors whom they’ll sell to: they don’t like those who flip artwork too quickly, or don’t attract the right buzz.

Likewise, careful ADR providers limit the supply of services to the better cases which again drives demand and increases prices. For promoting and contextualising the work of an artist, galleries command markups in the region of 100%. And here similarities end. I’ll just leave that there.

The collectors in a mediation context are private practice lawyers. Like the great patrons of yore, they commission those mediators who will reflect glory back on themselves, their cases, their clients. The Magic Circle firms and litigation powerhouses have a brand, a kudos that sways the critics – rightly or wrongly - towards their preferences. This is the private jury in which a wrinkled nose or raised eyebrow can turn a career. The obvious answer to the original question about who decides who is a good mediator, is here. This is where power resides. But there are more layers, and more voices needed to achieve consensus.

The final arbiter in Bowness’s methodology, and in many ways the most important, is the public. A Hockney or Picasso exhibition is guaranteed to sell out in venues across the globe. The public will queue for hours in the rain if necessary to grab a headset and shuffle round galleries gawping at their work. It’s not only an important empirical measure of quality, but blockbuster shows also justify museums’ and galleries’ funding.

What does a mediator have to do to pass into the canon of true greats? There exists a layer of superior mediators – mostly American - for whom the public will queue round the block. They have smashed any price ceiling related to mere quality, and enjoy kudos and market power of luxury goods. The biggest fee I’ve seen in London of late was $650,000 for a five-day mediation, plus, you know, a bit of follow up.

How do they get there? How do they transcend the grind of merely billing hours?

There’s no objective evidence to say that X mediator will handle a case any better than Y mediator; or that a luxury-goods-type mediator will produce any better outcome for parties than anyone else. It would be comparably daft to say that Monet is always better than Van Gogh. But certain mediators do have a public beyond the collectors, dealers and critics, beyond general counsel, board directors and oligarchs. These few are active on the public stage working on epoch-defining crises. They are few, but none is there by accident: they have their peers, the critics, the collectors, the patrons, and the public aligned. And that’s who ultimately decides.

Winning at mediation

Topics: Mediation

Matthew Rushton

Written by Matthew Rushton