“I think some of the other mediators that were finalists were extremely experienced and talented mediators, so to take out the category was great,” she said.

“But I think, more than anything, it’s a win for mediation in the industry itself; just to be recognised at the ALAs as an important part of the legal system.”

Ms Davidson first began her career in mediation by working in the learning and development space with lawyers — and eventually “fell into” a role teaching negotiation, making mediation a natural next step.

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“Mediation met so many of the challenges that I’d seen from the litigation side of things back in my days, all of the way back at the beginning as a lawyer. So that’s what I do now is a mix of the mediation, but I still do a lot of the teaching and training work because I think they’re fundamental skills for lawyers. The role of a mediator is to come in between two parties who have different objectives to help bridge their lack of trust often, or to build bridges where the relationship has come down so that each party or each side of that negotiation is able to express what’s important to them,” she explained.

“And the mediator then helps them have those conversations that they need to get to an outcome that makes sense and creates as much value as possible, ideally. So, when we talk about mediation in the legal sense, often it’s seen as part of the process of litigation where generally it’s something that either the court has ordered when proceedings are already on foot or in some cases, such as some aspects of family law or retail leasing, there is a mandatory process to mediate before you can even issue proceedings.”

Whilst litigation is the traditional way of resolving commercial disputes, mediation and negotiation can be a critical avenue for many legal practitioners, Ms Davidson noted.

“These issues are relevant in other parts of the law as well. But I think, particularly in commercial, where it’s about value, it’s about businesses delivering results and managing their budgets. The issue that we have with the legal system is, one, that it’s black and white. It’s always perceived that there is somebody who’s right and somebody who’s wrong. Whereas I think the real world lives in shades of grey, and often there’s contribution to a dispute by both parties that isn’t necessarily dealt with by the law very well.

“Also, there are issues of confidentiality that come with litigation. Sometimes businesses want to resolve their disputes without them being known to the world at large, and mediation gives them a confidential space to do that. Mediation is much faster than litigation. We know that cases take from months and months to years to get resolved. Whereas you can mediate something relatively quickly, that also makes it more cost-effective because you don’t have those lengthy processes,” she said.  

“And for me, I think the most important thing is that it actually helps people sleep at night earlier on. It takes the stress of the unknown off their shoulders. They can sleep at night. And for businesses and commercial mediations, it allows the key stakeholders in the business to get back to running the business instead of spending their time managing a dispute about something that’s gone on in the past and isn’t adding any value to the business in the current period.”

But despite mediation offering a myriad of benefits for both practitioners and clients, the uptake in mediation isn’t as high as it should be.

“Although lawyers will talk about ADR and practices, there’s often a perception that until you’ve gone a certain way down the litigation process, the clients won’t be ready to mediate. So, a lot of expense still gets incurred on those sort of traditional litigation bases,” Ms Davidson added.

“I’m a big advocate for early intervention, as in let’s mediate before we start issuing proceedings and do that because that’s where you get the maximum benefit from the cost savings. But even where it is happening at trial, there are cases where I will mediate, and it’s court-appointed. And when they settle, part of the discussions is how much will it cost to go to trial? And often, by settling on that time, the parties are saving anywhere from $30,000, but that’s probably a low number. Some of the cases, it’s in the hundreds of thousands of dollars from having to go to trial from where we are at that point.”

And in terms of what constitutes best practice for mediators in the current legal landscape, Ms Davidson said it’s “not just about getting an outcome”.

“It’s being able to give the parties to that dispute the ability to get closure and to walk away. And one of the things that we know from litigation is there are people who, 20 or 30 years after a piece of litigation has ended, still are tangibly emotional about that. The ability of a mediation is that not only can you resolve it, but you can manage the feelings of the parties so that they can now park this and get on with their lives. Now, I think there are some mediators out there who are more about, let’s just get this resolved and don’t necessarily take the time to work through that.

“And it may be appropriate in some cases, but there’s more than a mediator can do to really get buy-in from the parties to those disputes. I think the deep expertise in negotiation that I bring really colours the way that I approach mediation. I almost then become a negotiation coach for each of the parties in private sessions, so that I am giving them all the questions that they need to have thought about to figure out whether it makes sense to settle. And if it does, why might they need to accept something that’s less than what they went into the mediation with the expectation of, but being able to walk away feeling okay about that,” she added.

“When I first started, I wasn’t particularly experienced as a mediator. I would have barristers coming into mediations who obviously had been doing more mediations than I’d ever thought of, and they would try to bully me. The biggest lesson for me is just to understand my process and be able to stand my ground and really know that I can go through a process and have control of that mediation to get to the outcome for the client.”

The transcript of this podcast episode was slightly edited for publishing purposes. To listen to the full conversation with Nicole Davidson, click below: