What Do We Mean By Mediation?

What Do We Mean By Mediation?

Mediation encourages parties who have – or who anticipate having – differences, conflict or a dispute to sit down and talk, with a view to finding a mutually acceptable way forward. It is usually most appropriate when, for a number of reasons, people are unable to negotiate effectively for themselves or have reached some sort of impasse or deadlock. It recognises that direct negotiations can be difficult in many situations. It can also be effective to prevent awkward situations escalating.

A mediator is a skilled independent facilitator who works impartially with all concerned. Discussions take place in a confidential setting, the purpose of which is to help the parties to find a constructive solution that meets their real interests and needs. It enables people to engage in effective negotiations and to seek to understand, narrow and, wherever possible, resolve the differences or dispute between them.

The mediator does not impose a solution – the parties themselves decide the outcome, the terms of any agreement between them and how to take matters forward. Nothing which is said or done is binding on anyone unless and until they agree that it should be, at which point the agreement is usually recorded in writing.

Mediation is sometimes viewed as a “soft” approach. This is to misunderstand it and its purpose. Discussions in mediation ought always to be respectful and dignified. However, they can also be – and often are – rigorous and challenging, as difficult issues are wrestled with and faced up to with the help of the skilled mediator.

When can mediation be used?
Mediation can be used at any time, whether or not court or other formal proceedings are in progress. Often, mediation is used in circumstances where litigation is not even in prospect and where no lawyers are involved. Similarly, it is increasingly used in many countries to help parties in a court case to avoid the further cost, time and risk of court proceedings. It can also be used to help people in many settings to finalise contracts, create joint ventures and build better professional, business and personal relationships.

In many countries, mediation is seen primarily as an alternative to court (Alternative Dispute Resolution, or “ADR”). In some jurisdictions this has been very successful. However, this can also place limits on mediation’s scope. It can tend to become legalistic and formal. The beauty of mediation, however, is its infinite flexibility and informality as a means to help people in diverse situations to explore the real underlying issues and look creatively at options for the future, without being limited by legal concepts and indeed by notions of rights and entitlement.

(“ADR” is a term which should be avoided: it is restrictive and ambiguous. It is sometimes taken to refer to mediation, on other occasions to include arbitration, conciliation and a range of other processes. In any event, this expression creates uncertainty by being suggestive of “alternative to” something of prior importance rather than referring to one of a range of equally valid means to help resolve disputes in appropriate ways. As an example, in a number of US states, mediation is simply described as one of a variety of means of dispute resolution. People choose how they want to resolve their dispute without a presumption in favour of any one process.)

Rights and interests
In a rights-based world, where people are encouraged to take and support opposing positions, mediation focuses instead on real interests and needs. The classic adversarial and binary approach of courts and what we call positional negotiation (right/wrong, black/white, win/lose) is replaced by the recognition that there are usually several sides to most stories, depending on perspective, experience, assumptions, motivations, hopes, fears, aspirations and objectives. Modern behavioural psychology, with the extraordinary advances in our understanding of the workings of the brain and neuro-science, supports this more sophisticated approach as a recognition of the non-binary and complex nature of many disputes and indeed of most personal, professional and business relationships.

Where is mediation used?
Mediation is used whenever and wherever negotiation has failed or is in need of assistance.

  • Agriculture and farming (eg landlord and tenant matters, rights of access, use of land).
  • Banking, insolvency and financial services (eg disputes between customers and banks over lending or other complaints, debt recovery).
  • Construction and engineering (all manner of commercial and other dealings).
  • Employment and Workplace (individual disputes between employee and employer, team and other group dysfunction, conflict between managers, difficult union/management negotiations).
  • Family (from disputes over access to children to the allocation of property on separation or divorce to family business arrangements).
  • Government, local authorities (legislative errors, waste management schemes, flood control, planning, environment, provision of services, local community issues).
  • Health services (allegations of medical negligence, complaints about care, consultant/consultant conflict, management/workforce relations).
  • Higher education (student complaints, research projects, staff/management matters, funding).
  • Homelessness (mediation services exist in a number of areas to help prevent homelessness).
  • Housing (a home owner housing panel resolving disputes between homeowners and factors, application of the NHBC scheme).
  • Insurance (compensation claims of all sorts, allegations of professional negligence against all manner of professionals).
  • Intellectual Property (patents, copyright, licensing etc).
  • Landlord and tenant (disputes over leases, rent, dilapidation’s).
  • Neighborhood and Community (multiple occupancy, nuisance, boundaries, noise, use of open space, conflicting views on use of limited resources).
  • Schools (the use of peer mediation is a real success in a number of locations in Scotland, Assisted Special Needs Mediation helps resolve concerns and differences parents may have with schools and education authorities over the education of their children).
  • SMEs (supply chain contracts, shareholder conflict, management tensions).
  • Others include: the Not for Profit sector, Management and Boardroom, Oil and Gas, Sport, Personal Injury compensation claims.

Benefits of Mediation
Classically, the benefits of mediation are said to be:

Communication: most conflict is the result of inadequate or ineffective communication. “Why didn’t we have this conversation a year ago” is a phrase we hear more than any other. Mediation enables people to have conversations, to address difficult issues and to work through differences of view in a carefully structured way guided by a skilled third party. Crucially, in many situations (neighbours, business partners, contractors, families, in the work place) this can help to restore, enhance and rebuild relationships.

Confidentiality: the ability to discuss privately the real issues and not to be bound by anything said or done unless and until an agreement is reached.

Control: the parties retain control over the outcome rather than handing it over to lawyers or a judge or other third party adjudicator. Lawyers are often involved in mediation as advisers, advocates and confidantes but one of its defining features is party autonomy.

Closure: for many people, ending a dispute is as important as the outcome. Thus being able to bring a matter to a sensible conclusion without the time, stress, possible publicity, management cost, opportunity cost, reputational risk and loss of morale entailed in long, drawn out conflict is a real advantage. The vast majority of matters dealt with by mediation are resolved quickly and effectively.

Certainty: allied to closure and control is the knowledge of an agreed outcome and avoidance of the risk and uncertainty inherent in handing over dispute resolution to third parties. Being a consensual process, mediation has a remarkably high success and implementation rate.

Creativity: traditional problem-solving tends, because of its adversarial nature, to be binary. Courts are generally limited to money remedies and, on rare occasions to specific remedies such as interdict. There is, understandably, no scope for constructive approaches to dispute resolution. This promotes a culture where money/compensation/claims are the only way in which needs can be addressed.

However, research and experience tells us that most people want other and different things: for example, the contracted-for work to be completed, a service to be improved, an apology or acknowledgement of error or mistake to be made (regardless of legal liability), a return to work, recognition of pain suffered, reassurance that steps will be taken to prevent a recurrence, an explanation of what happened/went wrong, a renewed personal or business relationship. All of these can be discussed at mediation.

Cost-saving: while there are different formats for mediation (given its flexibility), broadly, mediation takes a day (or perhaps two) to help parties to reach a conclusion. From first inquiry through to agreement, only a few weeks is generally required. Overall, this should be much less expensive than other procedures, especially court or tribunal. From the perspective of individual cases, this enables resolution without (often hugely) disproportionate expenditure; from the overall perspective of public sector spending, this can bring significant savings in the overall justice budget.

The Courts
Most of these benefits arise, both in individual instances and more generally for society, regardless of steps taken to improve the delivery of court and other formal services. While the court (and arbitration) are important for some cases where a definitive decision by a third party is desirable, in most matters this is not what people want. Indeed, while millions of pounds and people-hours are devoted to the civil justice system, only a very small percentage of cases in the system (5%?) are actually decided by judges. The goal should be to take out of the system as early as possible (or remove altogether) all those cases which consume time, resource and money and yet are ultimately settled by agreement, very often after great expense has been incurred not only by public funds but by litigants, business, funders, insurers and others.

Thus, it would make financial sense to devote more resources to prevention of unnecessary litigation at an early stage in order to reduce the disproportionate expenditure at the expensive stage. Investment in early stage resolution, including encouraging more skilled approaches to negotiation and mediation, could save millions of pounds. In many countries and in many states in the US for example, the civil justice system leads the way in innovative measures to reduce the use of courts. This also frees up courts to handle quickly and effectively those matters which can only be decided by judges (and/or juries).

It is important to emphasise, however, that the benefits of mediation are far wider than merely saving public expenditure and that mediation is not just a way of reducing the cost of courts.

Economic Performance and Productivity
By finding creative ways to address disputes early and effectively (or even to prevent them from occurring or escalating at all), mediation offers a corresponding potential opportunity to enhance business performance, improve productivity, and reduce opportunity and remedial costs. These benefits apply in both the public and private sectors and could have a significant impact on business and overall economic performance and on the level and efficiency of public expenditure.

Research shows that the costs of conflict are high – it has been estimated that it costs UK business over £30bn a year, takes up 20% of leadership time and results in the loss of 370 million working days. The nature of the costs are not only financial, but can include: lost opportunities, distraction from profitable work, poorer service, damaged relationships and reputations, demotivation of staff, increased uncertainty and overall loss of confidence. These costs can have a hugely detrimental impact on business performance and company valuation.

Conflict inevitably represents a significant loss of productivity, which is the main driver of economic development. Even if we accept that conflict is inevitable, the more that can be done to manage it effectively and nip it in the bud, the greater will be the improvement in individual company and other economic results and in the performance of the economy as a whole. Mediation offers such a means.

By John Sturrock (Agency Report)

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