Ms Barnes started her legal career in private practice before starting her own mediation business — and said that, particularly during the uncertainty of the pandemic, mediation has meant understanding there are risks associated with everything.

“As long as there [have] been humans, there’s been conflict. So, there will always be a role for mediation. That’s good news for mediators and people looking to get into the space,” she said.

“What I do see, though, is that mediation, certainly in Victoria and I think across Australia, we’re really quite advanced in our acceptance of it as a way to resolve disputes, rather than that knee-jerk reaction to litigation. And because of that, the people who regularly take their clients to mediation are getting better and better at resolving their disputes.”

And especially as Australians get more and more “aware of their rights” and what to do in terms of resolving conflict, mediation is becoming more and more common.

“From what I can see, mediation use is increasing, litigation is increasing across a broad variety of jurisdictions and specialties. And in some respects, I see my lawyers actually, that I see at my mediation table, as being pretty burnt-out. They’ve got a lot of work on their plates. So, that’s within my jurisdiction; I know everyone’s different,” Ms Barnes said.

“But I only see it increasing, not decreasing, although I do joke with my clients that they get so good at negotiating [that] eventually they don’t need me and I do myself out of a job. But I’m actually very happy for that to happen as well, because less conflict means people get on with the more important things in life.”

There is also a range of opportunities that come with this increase in mediation, for lawyers, firms and businesses.

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“From the firm perspective, it’s an opportunity for younger lawyers to be more active in their role in cases, rather than being back in the office working on the desktop and getting all the paperwork together.

“Unlike trials, mediation is a good way for lawyers at a younger level to actually get more actively involved in the negotiations. It also keeps people engaged. Most lawyers love negotiating, so it’s actually an opportunity to use the skills that they probably did in law to begin with, in terms of that purpose,” Ms Barnes explained.

“In terms of businesses, they have a better opportunity to repair relationships. And even those instances where businesses might be falling apart, the opportunity to do so whilst maintaining a level of civility that litigation just doesn’t offer. Because it’s a small world, we all know that we come across the same people all the time. And by dealing with it in mediation, so face-to-face, really helps people to de-escalate, that we might otherwise get in terms of a war of letters between lawyers.”

Throughout — and post — COVID-19, Ms Barnes also saw the rise of mediation via Zoom, which she said not only meant that people were more comfortable — but was also useful for younger lawyers learning the ropes, too.

“Provided that they’re sitting in on the mediations in Zoom and witnessing it, it’s really just normalising the process so they get comfortable with the process. And then from there, the junior lawyers, provided they’re well-trained in the law, which they will be, it’s really about confidence and being able to take the time,” she added.

“And in a lot of respects, the role of the mediator should be to assist the junior lawyer to feel comfortable, to take their time, as we often say in mediation, feel the back of your chair, be able to take a breath and know that if you stumble or you misstep, we’ve all done that before. We’ll just wait for you to gather your thoughts, then we start again.”

However, post-pandemic, there are still a number of challenges on the horizon for those in the mediation space, particularly in terms of running a business, Ms Barnes noted.

“If a mediation goes well, it looks like the mediator hasn’t worked too hard because it’s just gone on a natural flow. So what I often say to people who are looking at becoming a mediator or they’re starting out, certainly do it if that’s something that you are passionate about. Because I love my job, it is the best job I’ve ever had.

“Having said that, it is hard to start a business. Like any solo business, when you’re starting from the ground up, you can expect to take at least 12 to 18 months to really get a steady staple of clients. Some people never get to that point. And I think certainly if you are doing both the mediating and another job, then it’s going to be even more difficult because you’re splitting your time. In short, if you’re passionate about it, absolutely go for it. Best job in the world.”

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