That friction between ancient and modern, Establishment and upstart, old money and new money, all feeds into making us Brits the wierdos we evidently are. It's a culture clash.

I make the point because I think a culture clash of a similar nature is evident in mediation right now and is worthy of our consideration this afternoon. To inform, or perhaps enflame discussion, I'll shortly be unveiling the results of a very brief survey we conducted on the subject through The Mediator Magazine.  

To begin, though, I'd like to thank those of you who responded. Especially gratifying was the fact that respondents came from 20 different countries, and therefore represent the views of some very different markets and mediation cultures. I'm also pleased to note that there are trenchant views on either side of the debate, so before we look at the results, let me offer you a flavour of some representative views.

In the anti-expert camp were three main concerns: first, that specialist mediators could be too narrow or niche; secondly that they could be too interventionist; and thirdly, that they too easily became too opinionated vis a vis the result.

Let me offer an example of each. First, narrowness of expertise. A not untypical view was as follows, and I quote: "In a complex oil and gas contract dispute, the mediator had sector experience but it was limited to a particular technical expertise.  As a result, the mediator only assessed the matter through the lens of his technical expertise rather than reviewing the case as a whole and integrating findings and facts arising out of other technical pieces of the case."

Another tendency - what I've termed interventionist - is the understandable desire on the part of the specialist to demonstrate their expertise. "In a particular instance," wrote one respondent, "the mediator was selected because of his experience in the field, as well as his reputation as a mediator. But that worked against us immediately.  His expertise allowed him to educate our opponent on nuances and details that might not have been raised, and he adhered to a (largely incorrect) view of the applicable standards required."

This raises questions which others might like to pick up on later, but I'll move on to the third concern of the anti-expert camp: that it stifles creativity and encourages the mediator to push for a single 'right' result. To quote one respondent, "Sometimes a mediator who has subject matter expertise has the tendency to be wedded to certain outcomes and, as such, is not as flexible as a mediator should be in managing the process." 

Voices from the other camp - the pro-specialists - were, if anything, more forthright in their views, but their concerns were much narrower. Criticisms revolved around issues of confidence and time.  "Too much wasted time explaining the facts," wrote one respondent, "which led to loss of client confidence and the neutral pushing for impractical/illegal "solution"." 

Others concurred:  "Someone who is not an expert (or at least knowledgeable) in the field wastes a lot of time trying to figure out the facts and the ultimate solution, " wrote one. "They can also be easily misled by either of the parties which makes the whole experience frustrating and fruitless."

The frustration is evident in a number of comments: "It took days to educate him about maritime law," wrote another respondent, "so that he could understand the dispute and the nuances which were key to settlement."

And finally - and I hope no-one here was mediating this one: "The mediator misunderstood the core of the case even when this was crystal clear to both the parties and their lawyers."

There is, of course, a third camp for whom it wasn't a question of expert versus non-expert. One respondent wrote: "A good commercial mediator, especially one with arbitrator or judicial experience can successfully mediate almost any dispute.  We are far more concerned with the mediators' general level of experience as a mediator, " he writes. And if you think you might like to work with this guy, watch out: he concludes with, "At least a decade of mediation experience or mediating over 500 cases are criteria we seek."

Turning then to the survey results. There's a pretty direct trade off, I've found, between the number of questions you ask and the number of responses you get. We opted for number of responses, and the survey was correspondingly brief. 

The first slide shows the general level of importance users attach to sector expertise. And, mercifully for someone who has organised a survey on sector expertise, nobody found it was a distraction. For a slender 13%, this was a critical issue in making appointments. For the majority, though, sector expertise depends on the matters in issue. So, good news: speciality is a live issue.

Moving on. 

[SLIDE 2] Next we probed whether expertise leant itself better to particular points in the mediation. The results show an even split between expertise playing a role in: 

• Challenging assumptions with authority

• Understanding facts

• Offering Commercial Solutions

• Distinguishing between mediators at the appointment stage

• And in gaining clients' confidence during the process 

The results, I think, invite two possible conclusions. Either 1) that the respondents have no clear idea when expertise is useful, or, and I think this is the more likely conclusion, that expertise feeds into all of these areas and is no more critical in one area than another.   

[SLIDE 3] With the third question we were trying to explore ideas about the beauty of ignorance. Whether a fresh pair of eyes, untainted by convention and the stifling effects of training, would have something new, fresh and invigorating to offer. Personally I like the idea; users, broadly, did not. 

[SLIDE 4] Fourthly, by a margin of two-thirds to one third users have not had cause to regret appointing mediators with sector expertise. 

At this stage it's tempting to begin drawing some conclusions: we know expertise is an issue of reasonable importance to most users; we know that along the timeline of a mediation, expertise is welcomed at many different junctures; and we know that most users have no regrets about using experts. 

The next slide, then, is something of a surprise: [SLIDE 5] asked if they had any regrets about appointing someone without expertise, and three-quarters of respondents said no. What I tentatively conclude from this is that the benefits of expertise are just that: they're added value. The absence of sector expertise is no tragedy, merely a missed opportunity. 

Our final question and my final slide [SLIDE 6], ties in with the first. Almost half of respondents said at the outset that the importance of sector expertise depended on the matters in issue. Here we can see a marked preference for sector expertise in particular areas of practice. From the slide, the sectors which stand out in order of preference are: 

• intellectual property and technology

• insurance

• projects, energy and utilities

• financial services

• banking, AND

• public sector and procurement

Taking the stats and comments left by respondents together, my take on specialisation is as follows. It's clear that sector knowledge can be beneficial. In most cases, and some more than others, sector knowledge will facilitate a more informed dialogue and a swifter conclusion of the dispute. 

Where users take issue with specialists is where the expert presses their knowledge on parties and proceedings. If used passively, in receipt of complex facts and arguments, sector knowledge clearly adds value. Is the larger issue here, then, about how a good mediator conducts themself as opposed to a poor mediator?

Will a good mediator time their interventions better, impart knowledge and insight with greater tact and diplomacy? It's possible they would. But tact and diplomacy are human qualities, and not something exclusive to mediators or qualities that require training accreditation. The winning combination, it seems to me, is an accomplished mediator, a sector expert and a decent human being. How users find them is, of course, up to them – and no doubt we’ll hear in due course. 

I have no shame in suggesting that in this respect, I think I have an answer. It's a system which allows the market to collaborate on feedback and peer reviews of mediators, and a system through which law firms can put mediations out to tender, and appropriate mediators can apply. If my branding of every single was too subtle, that system is called DisputesLoop. The website went live last week, and I think it represents an evolutionary leap forward in finding the appropriate mediator for the appropriate dispute. 

With apologies for that shameful plug, I'll hand back to Jane. Thank you for listening. I hope that the survey will provide a useful basis for further discussion.