Three recent interactions at a conference I spoke at on Investor-State Mediation in Abu Dhabi, hosted by Abu Dhabi Global Market, reinforced a message that I am beginning to hear more and more frequently. The language we use to describe our field is no longer fit for purpose - it doesn't chime with the modern world. It reinforces that we have become part of the status quo and we need to get back to our roots and use language that signals us as disruptors and innovators.
The first example was a discussion of the translation of mediator in Arabic, which is 'Waseet'. Those Arabic speakers at the workshop made the point that this term could be translated as 'influencer' or 'agent'. This, they said, played into the expectations in the region that the 'Waseet' would make recommendations or suggestions for settlement. The wider point coming out of this discussion was that in a business context, the term mediator is often connected with many other, often unhelpful reference points (conciliation, counselling, marriage guidance, peace-building).
The second interaction is the continued reference to the mediator as a neutral. While I understand the origin of this reference to the mediators' role (not being connected to either party), I have for many years in my mediation practice not used that term - I believe it is misleading. Mediators are not neutral in terms of the effect on the process and potentially the outcome, otherwise, why employ them. The continued use of terms such as neutral, merely obfuscates our true role as the appropriate facilitator of settlement for both parties.
The final point and one made a number of times, was that while the concepts of collaboration were consistent with the needs of modern business and society, the language of formal dispute resolution no longer chimed with the flexibility required for the use of the mediator skill set in modern business, interactions with younger generations and the increasing use of technology.
This point is consistent with The 2018 CEDR Mediator Audit which indicated that lawyers and mediators are beginning to use the process in a much more flexible way, not just in a dispute context but in general business. It is also consistent with the development of CEDR's work. While we still have a strong commercial mediation business, we are increasingly growing our consultancy work, applying the skills into broader business areas such as negotiation and leadership.
So what is the way forward?
While I don't have all the answers, my initial suggestions are:
- Focus on the client - too often we talk to clients using our jargon rather than focusing on their needs
- Break free - think flexibly about how to use the core mediator skills
- Be brave - don't be afraid to pitch your skill set in a variety of ways
- Be creative - stop being lazy with language and let's find creative ways to describe the work we do
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