Mediation and the Law – a big change is happening

When businesses and families have serious rows everything can seem insoluble and legal action may follow.  However, emotions and old grudges may cause a dispute that has nothing to do with the apparent “legal problem” everyone thinks they are arguing about. For example, I mediated a dispute between a spouse and the siblings of an elderly patient with dementia, about who should spend what time with the patient and control his care and welfare decisions. The spouse was distraught and felt threatened at the demands of the sibling group, who had little trust in her.  This was resolved in one day after nearly a year’s legal wrangling, court proceedings and after legal costs of over £30,000 had been spent.  This was not about legal niceties – there was no dispute about money or the law.  It was about grief, loss and the human tendency to displace impossible grief into something controllable, like a big row over something.

The only option for lawyers is to sift the evidence and translate it into a legal narrative – that is their role.  The difficult relationship between people, their struggle with each other, their relationships – that is often the real problem.  A trial or solicitors’ letters can be like amputating a leg, because someone has an infection. It’s as much use.

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So imagine a huge row – about a will, a sick relative, a business – or a commercial dispute between people who work together, or about a contract – wherever there are people – there will be disagreements.  It is human nature.  Each participant comes at it with their own interpretation of the “truth” with their own beliefs, which tend to be re-enforced through debate, as people don’t want to back down. The conventional, legal ritual inflames the conflict drivers of the dispute, so it escalates.  The Law concerns itself with the evidence and legal issues – but those are often not what matters to people. Mediation reaches the conflict drivers, the beliefs and misunderstandings that fuel disputes. Mediation is far more likely to resolve the argument, as it deals with a far wider range of issues than the law can.

Given the success of mediation at sorting out disputes, it is a wonder it isn’t a first choice for anyone with a possible court application, but it hasn’t been so far. This is because the allure of court is that the judge will agree with you and the other person will be found to be “wrong” or “at fault” People want to be found to be “right”, it is much more appealing than a settlement. The problem is, usually both parties think they are right and the law of averages says half must be wrong!

The court costs are huge, they frequently dwarf the financial value of the issue being mediated – then everyone loses out.  The court timescale is long, but by the time the proceedings are under way, it can feel there’s no way out. However, since April the courts are increasingly directing people to mediation. The tide is turning in favour of fast and affordable, non-adjudicated resolution in mediation for all disputes, whether commercial or family. Our experienced specialist mediation team are proud to be mediation experts.

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One Comment

  1. Posted January 30, 2014 at 1:42 pm | Permalink | Reply

    Thanks for the above.

    It appears to us that one of the biggest hurdles to overcome is the parties agreeing to the Mediation in the first place.

    The benefits of engaging in Mediation are clear. If we can overcome the perception and educate the benefits, we are on the right track.

    Thanks Again,

    Joe

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