A person might have a family or relationship issue, or worries at work or perhaps they are a landlord having problems with their tenant. For businesses, the problem could be to do with a faulty product, a dissatisfied customer who is threatening not to pay or a contract that isn’t working. Whatever the issue, when things get difficult, people turn to their lawyer. As the Law Society used to say – “it’s never too early to consult your solicitor”. Back in the day, the approach would be to advise their client about the ways in which the law could be brought to bear on the problem and how the application of the law would mean that the problem could be solved. In some cases that would mean that the lawyer might write to an “opponent” setting out the error of their ways and inviting them to change their position to align with that of the unhappy client. Sometimes that works. Sometimes it doesn’t. Sometimes it makes things a whole lot worse.
If we think about the times we have been in a conflict situation, how often have we been happy to respond to a challenge by saying “of course, how silly of me, you’re absolutely right, I will accede to your demands without delay.” I guess not many. In fact, research shows that the more natural response to a challenge of this sort is to drive the parties further apart, to have them retreat to their adopted bargaining position and, from there, prepare to slog it out in an ever more acrimonious exchange of claim and counterclaim. That is what the court system is provided for and that is what many lawyers think is meant by representing their client’s best interests.
The question is: are they right? What are a client’s best interests? And, in any event, can the court system serve those interests? These days the courts, and the employment tribunals are suffering from backlogs and delays and the lawyers plying their trade in them charge higher and higher fees to allow litigants to engage in the formal process that the law provides for the resolution of their disputes. Lawyers charge those fees for taking those disputes through those formal process and more often than not, win or lose, those fees are not fully met by the other party. A court can only tell the parties whether they have won or lost, award them money or make a declaration of what the law says about their dispute. What it can’t do is mend the damaged relationship of the litigants. What it can’t do is discuss between the parties whether there might be better ways to sort out their problems. Well, until recently they couldn’t.
With the advent of the Simple Procedure in the Sheriff Court, sheriffs now have an obligation to consider suggesting to litigants that there might be better ways to resolve their problems than come to court with them. Lawyers too are encouraged both through the guidance issued by the Law Society to have “a sufficient understanding of commonly available alternative dispute resolution options to allow proper consideration and communication of options to a client in considering the client’s interests and objectives” and in pre action protocols in the Commercial court to “consider carefully and discuss whether all or some of the dispute may be amenable to some form of alternative dispute resolution.”
If you were told there was a way of resolving your problems that encouraged parties to talk to each other about why they had a problem in the first place, asked them to consider things from the other party’s perspective and looked at ways in which they might find a way of repairing or rebuilding the relationship which they once had, you might well be interested in finding out more.
If you were told you that it might very well be quicker and cheaper and that you could do this without having to share your problem in the public domain, perhaps you would like to consider using this method to sort out the problem.
If you were told that you could have a go and that you would only be bound by the outcome if you were happy to come to an agreement (and that more than 70% of people who try it do just that), perhaps you would be asking why it hadn’t been suggested in the first place.
That’s where mediation comes in.
Mediation is a method for resolving people’s problems that allows the parties to consider the whole range of their interests and objectives and, by using an intermediary, explore with the other party the best way to get out of the conflict in which they find themselves. Many mediations result in agreed solutions to conflicts which allow the parties to resume their once effective commercial or family relationships in a way which minimises the damage done by the dispute in the first place. A mediator can work with parties to ensure that all aspects of the parties’ needs are considered not just the commercial ones. Sometimes an apology or even an acknowledgement that things might have been done differently is worth more to someone in a dispute than “winning” the battle. Sometimes parties find that the costs, not just the financial costs, but the costs of time and emotion, involved in continuing the battle are far more than anyone ever told them they would be and that finding a way that allows everyone to walk away with a confidential agreement and their heads held high is worth so much more than continuing to battle it out.
Mediation is a way of looking at problems which allows parties to take control of their dispute and decide what it is that they need to resolve, and to reach agreement for themselves. What mediation is not is a ‘soft option’. It takes guts and reflective insight for someone to recognise that they might have done things differently. It takes bravery to face someone whom you might have insulted or upset and start to try to build back a relationship which once upon a time you treasured. It is not a “split the difference” sort of compromise, because disputes that resolve themselves that way probably weren’t really very difficult to resolve in the first place and rarely involve parties feeling the need to take professional advice. Mediation is not the right forum to resolve a conflict that needs a third party to declare that someone is right and someone is wrong – but how many commercial or personal disputes are really like that?