David Connor, a partner of the Auckland Lawlink firm of Hesketh Henry, discusses the value of mediation in resolving disputes, but questions whether it always achieves the best result for everyone involved.
Mediation is a voluntary dispute resolution process and deserves recognition as a successful procedure. Parties who choose it use a neutral mediator to help them to resolve their dispute. There are nearly as many mediation styles as there are mediators. Typically mediation uses the following process:
- the parties meet to outline their complaints and identify issues
- the mediator helps them to see the strengths and weaknesses of their case
- they effectively negotiate solutions based on the greater knowledge they derive through the process
- the mediator assists with the conclusion of an agreement
Continued involvement in the process is voluntary and the flexibility and control it gives those involved is becoming well known.
For both lawyers and clients the decision to mediate is a delicate one. It is often not so much whether to mediate, but when to mediate. Early in a dispute clients sometimes construe the suggestion to mediate as showing a lack of belief and confidence in their case and a recommendation to capitulate early!
For lawyers and their clients the timing also depends upon whether the others involved in the dispute have reached the stage when they are willing to participate. Commercially sophisticated and other pragmatic parties often reach this stage a lot earlier than others who are bound up in the emotion of the dispute. The latter often remain locked in a view of litigation as a form of nuclear war to be waged as viciously as possible. The reality, often accepted far too late, may be more akin to being stranded with their adversary on a remote desert island, with the corresponding need to co-operate to survive.
So Why Mediate?
Is mediation the last bastion of a bad case or a failure to give the other side "the sound thrashing they deserve"? Unfortunately this perception of mediation is preventing it being used more often. It is a fact that only slowly is this giving away to the more enlightened view that litigation is rarely a desirable activity of profit-motivated businesses. Since mediation is voluntary, the difficulty is that it is not only when both parties hold these views that mediation is not used, but even if one party holds them. Then litigation is forced.
To add some balance, having referred to mediation as successful and efficient, there is also a need to question what is meant by those terms. Mediators and commentators trundle out the settlement rate of mediations in general as well as those that they have conducted. These are then tangled with phrases such as "success rate" and they are used as evidence of mediation's "proven success".
Settlement Versus Success?
Experience shows that settlement is not always the same as success. In many cases a settlement which works to the advantage of all parties will be successful. But sometimes late-night settlements reached at mediation look particularly unattractive the next day. In these examples, the disappointed parties often refuse to perform the agreement. On some occasions, success should be seen as the fact that the parties can accept the need for someone else to finally determine the matter for them.
What About "Efficiency"?
The short answer is "it depends". There are more views on what is efficient than it is possible to discuss in this article. Is it reduction of cost to the disputants or the total cost to the community? Here are a few of the factors that are relevant to consider:
- mediation results in a rapid allocation of resources (ie gains and losses)
- mediation results in reduced pressure on the judiciary and court resources
- mediation increases the likelihood of further trade between the disputants (although the breakdown of their relationship would probably create opportunities for seeking alternative relationships)
- mediation reduces risk for lawyers and clients
Criticisms
On the other side:
- mediation can be seen as cheapening the strength and recognition given to contracts and other obligations by providing a forum to renegotiate them further down the track
- mediation can also in effect be a process for legitimising a person's breach of contractual and other obligations; compromise involves recognition that the other side may be right, but often the motivation for settlement (cost, delay, stress, etc.) have nothing to do with right or wrong in the legal or moral sense, and the need to compromise can bring the law and its processes into disrepute
- mediation is so compressed that, even with sound preparation, decisions are sometimes made which the disputants wish to revisit later
- mediation results in private decisions and therefore in some cases legal issues are not aired in public which should be
It is attractive to dismiss the criticisms by pointing to the voluntary nature of settlements reached through mediation. However the author senses a growing and healthy scepticism. Volition is a matter of degree. Some motivations are legitimate or desirable and others are not. Fear of criticism for not settling or the pressure caused by the client's inability to afford litigation or its risk are not desirable motivations, yet they are a reality.
Overall, mediation is a strong step forward in conflict resolution. But the way we are using it must evolve. Currently, much mediation is a one or two day "event" in which mediators work through their familiar process. While parties are informed that they have control over the process, it is the mediator and to a lesser extent any lawyers involved who have the experience that would assist in determining what variations might work. Often those variations are not made known to the disputants.
Examples include the chance for pre-mediation conferences where the parties find themselves acting cooperatively. These can turn out to be catalysts for settlement because they show the parties that they can work together. Similarly, while mediators and commentators on mediation emphasise "process", the compression of four seasons into a day under the guise of "process" needs to be revisited. A slower process, over say, a month with weekly, half-day, sessions might see more practical and satisfying results.
Conclusion
Mediation should be viewed as a positive addition to the methods of resolving disputes. To get the most out of it, disputants should demand more thought be given to the process and input from mediators and counsel alike.
Copyright The Lawlink Group Ltd 1999
Every effort has been made to ensure that this information is accurate. However, it is general introductory information only. It does not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.
David Connor is a partner in the Auckland Lawlink firm of Hesketh Henry. He is a specialist in commercial and civil litigation, dispute resolution and negotiation and is a member of LEADR (Lawyers Engaged in Alternative Dispute Resolution).
Web site: Hesketh Henry
Email: david.connor@heskethhenry.co.nz
November 1999
Mediation is a voluntary dispute resolution process and deserves recognition as a successful procedure. Parties who choose it use a neutral mediator to help them to resolve their dispute. There are nearly as many mediation styles as there are mediators. Typically mediation uses the following process:
- the parties meet to outline their complaints and identify issues
- the mediator helps them to see the strengths and weaknesses of their case
- they effectively negotiate solutions based on the greater knowledge they derive through the process
- the mediator assists with the conclusion of an agreement
Continued involvement in the process is voluntary and the flexibility and control it gives those involved is becoming well known.
For both lawyers and clients the decision to mediate is a delicate one. It is often not so much whether to mediate, but when to mediate. Early in a dispute clients sometimes construe the suggestion to mediate as showing a lack of belief and confidence in their case and a recommendation to capitulate early!
For lawyers and their clients the timing also depends upon whether the others involved in the dispute have reached the stage when they are willing to participate. Commercially sophisticated and other pragmatic parties often reach this stage a lot earlier than others who are bound up in the emotion of the dispute. The latter often remain locked in a view of litigation as a form of nuclear war to be waged as viciously as possible. The reality, often accepted far too late, may be more akin to being stranded with their adversary on a remote desert island, with the corresponding need to co-operate to survive.
So Why Mediate?
Is mediation the last bastion of a bad case or a failure to give the other side "the sound thrashing they deserve"? Unfortunately this perception of mediation is preventing it being used more often. It is a fact that only slowly is this giving away to the more enlightened view that litigation is rarely a desirable activity of profit-motivated businesses. Since mediation is voluntary, the difficulty is that it is not only when both parties hold these views that mediation is not used, but even if one party holds them. Then litigation is forced.
To add some balance, having referred to mediation as successful and efficient, there is also a need to question what is meant by those terms. Mediators and commentators trundle out the settlement rate of mediations in general as well as those that they have conducted. These are then tangled with phrases such as "success rate" and they are used as evidence of mediation's "proven success".
Settlement Versus Success?
Experience shows that settlement is not always the same as success. In many cases a settlement which works to the advantage of all parties will be successful. But sometimes late-night settlements reached at mediation look particularly unattractive the next day. In these examples, the disappointed parties often refuse to perform the agreement. On some occasions, success should be seen as the fact that the parties can accept the need for someone else to finally determine the matter for them.
What About "Efficiency"?
The short answer is "it depends". There are more views on what is efficient than it is possible to discuss in this article. Is it reduction of cost to the disputants or the total cost to the community? Here are a few of the factors that are relevant to consider:
- mediation results in a rapid allocation of resources (ie gains and losses)
- mediation results in reduced pressure on the judiciary and court resources
- mediation increases the likelihood of further trade between the disputants (although the breakdown of their relationship would probably create opportunities for seeking alternative relationships)
- mediation reduces risk for lawyers and clients
Criticisms
On the other side:
- mediation can be seen as cheapening the strength and recognition given to contracts and other obligations by providing a forum to renegotiate them further down the track
- mediation can also in effect be a process for legitimising a person's breach of contractual and other obligations; compromise involves recognition that the other side may be right, but often the motivation for settlement (cost, delay, stress, etc.) have nothing to do with right or wrong in the legal or moral sense, and the need to compromise can bring the law and its processes into disrepute
- mediation is so compressed that, even with sound preparation, decisions are sometimes made which the disputants wish to revisit later
- mediation results in private decisions and therefore in some cases legal issues are not aired in public which should be
It is attractive to dismiss the criticisms by pointing to the voluntary nature of settlements reached through mediation. However the author senses a growing and healthy scepticism. Volition is a matter of degree. Some motivations are legitimate or desirable and others are not. Fear of criticism for not settling or the pressure caused by the client's inability to afford litigation or its risk are not desirable motivations, yet they are a reality.
Overall, mediation is a strong step forward in conflict resolution. But the way we are using it must evolve. Currently, much mediation is a one or two day "event" in which mediators work through their familiar process. While parties are informed that they have control over the process, it is the mediator and to a lesser extent any lawyers involved who have the experience that would assist in determining what variations might work. Often those variations are not made known to the disputants.
Examples include the chance for pre-mediation conferences where the parties find themselves acting cooperatively. These can turn out to be catalysts for settlement because they show the parties that they can work together. Similarly, while mediators and commentators on mediation emphasise "process", the compression of four seasons into a day under the guise of "process" needs to be revisited. A slower process, over say, a month with weekly, half-day, sessions might see more practical and satisfying results.
Conclusion
Mediation should be viewed as a positive addition to the methods of resolving disputes. To get the most out of it, disputants should demand more thought be given to the process and input from mediators and counsel alike.
Copyright The Lawlink Group Ltd 1999
Every effort has been made to ensure that this information is accurate. However, it is general introductory information only. It does not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.
David Connor is a partner in the Auckland Lawlink firm of Hesketh Henry. He is a specialist in commercial and civil litigation, dispute resolution and negotiation and is a member of LEADR (Lawyers Engaged in Alternative Dispute Resolution).
Web site: Hesketh Henry
Email: david.connor@heskethhenry.co.nz
November 1999
June, 2001
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