Litigation, Mediation, Wisdom and Skill

I’ve been mediating for 10 years (4 of those full-time) and it’s been my privilege to have mediated well over 400 civil disputes of all shapes and sizes. I love the job; it’s a far cry from sitting at my desk or appearing in court fighting my clients’ corner – something I’ve done for over 25 years. Or indeed attending mediations with my clients. That said, you will never hear me decry the litigation process or the people who operate within it. I have the greatest of respect for the legions of really excellent lawyers who are dedicated to their work and their clients, often for far less remuneration than is popularly imagined. What does bother is the constant assault on access to justice pursued by successive governments: the slashing of legal aid, the crazy hike in court fees, the imposition of employment tribunal fees (now abolished following a Supreme Court ruling last year). Unfettered access to justice for all – regardless of means – should be an essential element of civilised society.

But I digress from my subject. Mediating is an exhausting job requiring energy, tenacity, positivity and guile. There is no down time. I leave the building drained. This is exactly as it should be, because we are all there together trying to condense into (usually) a single day a process that the disputants may have lived with for years, and may have to live with for years more if they don’t settle. The day is a journey.

For those participants and their representatives who come with an open mind and a collaborative spirit, it’s a journey which often ends at a place they were not expecting. That can initially be seen as a negative: “I’ve compromised more than I should have”. Indeed, I often hear lawyers say that if both sides are less than ecstatic about the deal then the mediation has been a success. I get that, but in my experience most disputants will come to feel great relief that a burden has been removed – either from their lives or their desks, or both. That burden usually takes three forms: money, time and emotional harm.

Litigation is almost always about the past – something happened which shouldn’t have, or something didn’t happen which should have. It’s human nature to want to put “right” a “wrong” and to defend yourself if you didn’t do anything “wrong”. But it’s also human nature to become so fixated on that past “right” or “wrong” that we lose sight of a simple fact: we live our lives in the present. We have each day ahead of us: families and friends to support, businesses to run, new projects to pursue, income to earn, debts to pay, vicissitudes of all shapes and sizes to face.

Litigation is an essential piece in the jigsaw of democracy – private citizens need it to enforce the law and achieve justice. Few disputants will be incentivised to mediate unless litigation has been initiated or is threatened. But litigation is a complex tool. It needs wise and skilful handling. Without wisdom and skill, litigation can damage or destroy lives, livelihoods and relationships. It can steal wealth, time and future opportunity. We can lose a lot by taking our eye off the present and focussing on the past.

There have been and are many causes that are worth risking everything for – that’s how we built our society. But let’s face it, the overwhelming majority of disputes that find their way into the civil justice system are not of that order. As a mediator I try to encourage the disputants to reframe the dispute in the context of everything else that is important to them. I try to do this by exploring their real interests (as distinct from their legal positions) and what they are putting at risk by continuing down the litigation path. I try to encourage them to tune into their own wisdom and skill so that they can make good decisions. What is the opportunity cost of pursing this dispute beyond today?

I have no problem whatsoever if those good decisions do not lead to settlement – I am not attached to any outcome (other than perhaps my wish that the disputants should leave the mediation having gained something of value). But it can be difficult to even start those conversations unless the disputants’ legal advisors have already imparted their own wisdom and skills in laying the foundations for a successful mediation day.

In my next post I will be looking at some techniques lawyers can use to prepare their clients to make the most of the opportunity that a mediation presents.

Alistair Pye