Who Calls the Shots in Mediation?
Shift in thinking is needed to recognise value of mediated settlements

 by Fergus Armstrong, published in the Irish Times on 21.04.08

In a recent article on this page, Mr Turlough O’Donnell, Chairman of the Bar Council, gave an account of what appears to be a turning of the tide, as seen in the more frequent use of mediation to resolve legal conflicts.

The basic theory of mediation is so simple it could offend the reader’s intelligence to spell it out. It is, simply, that where parties are in dispute, they can be assisted by a neutral third party in composing their differences, largely through the use of confidential speaking with each side.

In cases of marriage break-up, the use of mediation is already well established in Ireland. Here the process typically proceeds in a ‘lawyer-free zone’. The parties are assisted by the mediator as they strive to agree a division of assets and arrangements for children. Where this is successful they bring agreed terms a solicitor to be embodied in formal documents. What is new is the extension of the reach of mediation to a broader range of cases, including business disputes. Here, by contrast with family cases, lawyers are intimately involved in the process.

This article looks at patterns of acting that may be carried over into mediation from the established court process.

Mr O’Donnell has fairly acknowledged the shortcomings of adversarial litigation and how in many instances it can contribute to a worsening of relationships.

It is in fact remarkable how the modalities and language of litigation actually negate our worthiest aspirations, concerning slowness to judge others and openness to forgive and reconcile. As Aidan Mathews pointed out in a recent broadcast, getting justice means getting even. Cross examination of witnesses, directed as one hopes to the ascertainment of truth, may, as the President of the AGSI has suggested, be experienced as intimidation. Some tribunal witnesses might agree. An English High Court Judge is on record as saying that on the one occasion in his career when he had to give evidence in a case he was ‘more nervous and afraid than when addressing as counsel the most daunting tribunal’.

Even if it is true that most cases do not get to court and are settled before hearing, the mode of negotiation prior to trial is often highly confrontational. Lawyers argue/negotiate from positions of best tactical advantage deploying such threats as are available to them as to what will be unleashed in court if the case goes forward.

Legal professionals are paid to articulate grievance, to justify anger, to vindicate the position of the person who employs them. This is not the only occupation that is focused more on the pathologies of human nature as opposed to well-being.

A client can derive satisfaction, at least in the early stages of a dispute, in having a lawyer who will deliver highly charged broadsides to the opposition: ‘You will be hearing from my lawyers!’ But as the litigation process develops, and the case takes on a life of its own, unease may develop with increased awareness that a legal fight involves high cost, high risk and ongoing stress and pain.

Once parties have made a shift so that they become interested to find a return path, to look at where the other is coming from, it will be helpful to have the services of an independent facilitator. The success rate is high. By far the greater proportion of cases submitted to mediation settle on the mediation day or shortly thereafter.

Parties in dispute may themselves need to be ready to take the lead in proposing mediation. The policy of Mr Justice Kelly in suggesting mediation in many cases coming before the Commercial Court has been a considerable stimulus. It is striking, however, that outside of that development, the take-up on mediation remains modest in the context of the high volumes of cases processed in the traditional way. The question really deserves to be asked, why it is that mediation is so often seen as the ‘alternative’ rather than the norm as a process of dispute resolution.

It is sometimes suggested that to propose mediation to an opposite party will be seen as a sign of weakness. If so, then it will be helpful if other judges generally are prepared to suggest its use – as did Ms Justice Maureen Harding Clark in the Kenny/Charleton litigation – and ideally at an early stage in the proceedings. In England, developments in case law and procedure place a party who rejects an offer of mediation at risk as to legal costs even when a case has been decided in that party’s favour.

I return to the issue of legal roles in mediation. For legal practitioners, a paradigm shift is called for. This can be difficult. ‘To the man with a hammer in his hand, everything looks like a nail’.

There is an ‘early stage’ model for mediation of a legal dispute. This carries over into mediation the modalities of the court process. The sides line out. Speeches are made; there is legal debate as to the likely outcome of the case if it goes to trial, and bargaining is initiated based on perceived relative strengths of the legal positions. This is, essentially, a reversion to the adversarial method. It is associated with the desire to declare some party right or wrong.

Yet legal considerations can never be more than part of the picture. Nor are legal outcomes predictable, as witness the recently settled Fyffes/DCC litigation where a decision running to 367 pages, following a hearing over 87 days by a highly respected High Court judge was overturned by the Supreme Court.

Legal skills called for in mediation differ from those appropriate to fighting a case. Parties should be centre stage. The lawyer’s contribution is that of a detached adviser who assist clients in exploring choices, pointing out strengths and weaknesses of the case, in confidential discussions that include the mediator. He or she will sometimes serve as a conductor for emotional discharge, helping people towards self understanding and compromise, knowing the client’s circumstances well enough to have a sense of what can and can’t be traded.

It can be suggested, in fact, that the party who enters a mediation with an overriding sense of being somebody’s client, will have missed the point. Best results will come from creative interaction between parties, lawyers and the mediator (who may or may not be a lawyer).

Fergus Armstrong is a member of the ONEresolve mediation panel. He is a former chairman of McCann FitzGerald, solicitors.