My journey from the TV studio to mediation

How often do you feel really listened to? How good do you think you are at listening? How do feel when you don’t feel listened to? How well do you think you know what really matters to your clients and how best to help them get it? I ask these questions because they go to the heart of why I left hard news reporting to become a mediator. My work and experience gave me specific insight into our basic human need to be heard, and what happens when it’s overlooked. I interviewed tens of thousands of people over the course of a 30-year career in journalism. The ones who stayed with me were the ordinary people who found themselves in life-changing situations and wanted to use their experience to make a difference.

People often turn to journalists in extremis, at the point of total frustration, having not felt heard by those they’ve been trying to speak to who hold the power to make a difference. There were two inescapable factors in this for me. Firstly, how stuck we can get when we don’t feel heard. Secondly, how self-defeating it can be for an organisation or an individual to ignore or try to silence it, when someone speaks up about something. And there was something more that would nibble at me. The power of journalism to give a voice, lend an ear and shine a light is vital. But how often does it unite? In a world where people want to be heard, but don’t always want to listen, how do we have conversations that make a difference? It’s what I strived for in my journalism.

I got to the point of knowing I needed to change arena to feel satisfied. I now have the privilege of working on sometimes high-profile, usually difficult cases where I know that at the end of the day, or process, those I work with can, and mostly do, leave with resolution (The CEDR Tenth Mediation Audit, Feb 2023 cites a 90% settlement rate). I haven’t missed being on TV once since I left broadcast news, but sometimes I wish the work I do now were on camera, because to see the breakthroughs that can happen where people have been so polarised would leave no one in doubt about the power of mediation. However, privacy and confidentiality are sacrosanct in mediation and so now I give a voice and lend an ear behind closed doors, and shine a light as best I can by talking about how it works, why it works, and how to get the best out of it.

Mediation is about finding a way out of disagreement through understanding. Many take that as meaning mediation is just about compromise and haggling. I’ve heard people say they won’t mediate because their case is so strong they want to win it. Conversely, I’ve heard others believe the other side only wants to mediate because they have a weak case.

Here’s a story. Early in my mediation career I had the privilege of observing the brilliant Andrew Miller KC in a big commercial mediation. Both sides were locked into arguing and proving their case. No early sign of any breakthrough. Then one side asked Andrew privately – what do you think we should do? Andrew said – I’ll tell you exactly what I think. I was agog. One of the fundamental rules mediation is that the mediator is impartial. Am I about to hear a mediator break that?. Andrew continued – I think that when I am in this room everything I hear persuades me. I’m thinking you’ve got a great case and on a good day the judge will be on your side. The problem is that when I am in the other party’s room I hear what they’re saying about the dispute and I think exactly the same thing. But what I know is that on any given day in court you are in the hands of the judge who will either find for you or the other side. You will therefore leave court convinced that the judge made the right decision or that the judge got it completely wrong. You will have handed everything over to someone else, the judge to decide, and that’s the risk you take. It’s up to you whether you go for it, take the risk and live with what the judge decides, or take the opportunity today to explore what you think you can live with.

That powerful moment was a game shifter. Mindsets changed from fixed to finding a solution. A deal was reached. In a nutshell, that is what mediation is about. It’s a process and it’s a mindset and the skill of the mediator is to get everyone to leave with an outcome they can live with, which they know in their heart is the right and fair one – by supporting reflection on both sides, reality testing options, bringing future focus, and weighing the cost (financial and emotional) of one process versus another.

The mediator is multi-partial. What does that mean? Well, a good mediator should never seek to persuade or cajole someone into a deal in mediation just to keep the success rate up. Success comes from a conversation where the issues are properly aired and understood. That means being 100% on the side of understanding where everyone is coming from, why they believe it so strongly, what is the evidence to back up their position, what are their options, what are their priorities.

In the mediation process, this starts with private discussion with each side, as the mediator seeks to understand, and supports each side in focusing on their own issues and priorities to prepare well for the next step, when both sides come together. The mediator’s work is to ensure each side speaks so they’re heard. And that they listen in order to understand too. I’ll come to how we do that in my next column – An Anatomy of a Mediation.

So how does a client get the best out of mediation? Park the mindset of arguing a case to win. Corralling arguments to understand your case is vital. Knowing when to understand why the other side has equally strong conviction too is also vital, or risk being stuck in conviction without certainty. See the mediator as the bridge, the translator to help the communication, to get what the judge gets in court – the full 360. Staying locked into your own 180 becomes self-destructive after a point, and how soon that is depends on the situation and circumstances.

In successful mediations the clients need to see the process as the opportunity to persuade the person against them, not an unknown judge. A judge will impose an outcome that even they will acknowledge may not always be easy to enforce – thinking of family cases in particular here. Think about it – when you understand why something really matters to someone, not just the fact of them wanting it, you’re predisposed to wanting to support them in it. That’s what can become the virtuous circle in mediation. Which brings us to the question of why does mediation work? How does it unlock even the most gnarled of disputes? When empathy comes into the room, agreement will follow. I’ve witnessed it so many times in situations that seemed implacable. It circles straight back to those questions I asked at the start of this piece. We all understand at our core how deeply it matters to feel heard and understood, and we get it by giving that to the other.

Joanna Gosling is a former BBC News chief anchor and Harvard Law School trained mediator. 

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