By John Sturrock QC
Chief Executive and Senior Mediator
Core Solutions Group
Published in Justice Matters: Essays on Improving Scotland's Justice System
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.
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.)
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.
Mediation is used whenever and wherever negotiation has failed or is in need of assistance. These are just some examples from Scotland:
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.
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.
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.
There is a significant amount of mediation taking place in Scotland. As an essentially private process, it is rather difficult to quantify numerically. It is however still very much a minority pursuit. Family mediation has been established for nearly 30 years. Relationships Scotland supports a network of 22 locally based family mediation services, but family mediation is probably still rather intermittent. A number of initiatives and legislative proposals have brought mediation to some community, housing and other activities. These still tend to be rather sporadic. In Glasgow, Edinburgh and Airdrie Sheriff Court, projects exist supporting mediation in small claims and summary cause cases. These are supported by volunteers and often on a shoestring budget. Despite this, mediations are taking place that are resolving disputes in a very high percentage of cases. Most local authorities have mediation services although the scope and scale of these services is under pressure in the current financial climate. An initiative to introduce mediation in planning has not proceeded despite a pilot scheme in 2010 which demonstrated potential for many savings and gains.
As noted above, mediation also occurs in a broad range of commercial disputes and in workplace, employment and public sector matters. Many major matters have been resolved in this way in recent years. Generally, this is a matter of choice and dependent on individual (usually legal) advisers and (occasionally) clients suggesting it. To that extent a more flexible and creative approach has been taken to mediation in Scotland which has seen it develop in a less legalistic way than in England, for example.
However, and perhaps rather sadly, the use of mediation in Scotland has not grown as it has in other countries. In England and the Republic of Ireland for example, much greater emphasis is placed on encouraging mediation through the courts. The same is true in countless jurisdictions around the world, in less developed as well as developed nations. In many places, legislation has been introduced to place mediation on a statutory footing. In Scotland, it has been observed that the courts in particular have, generally, been reluctant to recommend or encourage the use of mediation.
Possible rules of court on the use of mediation were drafted in about 2004 but no progress was made pending the review of the civil courts. It is perhaps fair to say that the review was only lukewarm about mediation as a central part of dispute resolution architecture in Scotland. There has been a misconception that encouraging mediation is in some way contrary to the European Convention on Human Rights and the right to a fair trial. As many senior English judges have said, that is not so. If mediation is unsuccessful, parties can still pursue their cases in court. Nobody can be compelled to reach agreement in mediation against their will.
The opportunity to place mediation on a sounder footing as part of the radical reforms of civil justice has not yet been taken in Scotland. In England, courts regularly take into account refusal to mediate as a factor in assessing allocation of costs in a litigation. The recent Jackson reforms of the English cost regime, following the Woolf reforms nearly two decades ago, are informed by the need to help parties to resolve cases early and with proportionate cost. The same has not occurred in Scotland. Thus, from a business point of view, Scotland is a less attractive forum for many litigants than other jurisdictions. English-based lawyers and clients frequently express astonishment at what they view as the outdated approach in Scotland.
Professional training in mediation occurs regularly and there are many more trained mediators than have work in mediation. Many of these use their mediation skills in other contexts such as management, HR, consulting and strategic work. They are an untapped resource. Many lawyers are trained in and use mediation skills, often to great effect, in Scotland. Many other lawyers are resistant to its use. Research shows that this is not just about fear of loss of revenue but that many complex psychological reasons are at play, including over-optimism, undue reliance on past experience or intuition, the fallacy of sunk costs, reluctance to change and risk aversion. A recent conference in London revealed that, apparently, the principal impediment to greater use of mediation in many jurisdictions is the reluctance of legal advisers.
Legal professional obligations could be changed to place greater emphasis on the need to advise about mediation. The Law Society of Scotland has shown understanding of this. Scottish lawyers have a great opportunity to change this trend.
It might also be said that in legal and other education, our universities appear to be slower, at undergraduate level (there are some fine masters’ courses), than many others elsewhere to build negotiation and mediation into the curriculum as central features. Arguably, the same can be said of schools. These are life skills which will help us all to cope with conflict and difficult situations in the future.
John Sturrock QC
Chief Executive and Senior Mediator
Core Solutions Group
Edinburgh 0131 524 8188