Mediation of Disputes – Current Practice

Paul Sills        

ADLSI is presenting a CPD workshop on “Breaking the Mould” – Resolving Disputes without Mediation on 30 May 2013. In this first of two articles on the subject, workshop co-facilitator Paul Sills provides useful background for practitioners, especially those who will attend the workshop.

Are we doing the best by our clients in the way disputes are currently settled?

There is an important distinction between resolution and settlement. Resolution is “the action of solving a problem or contentious matter”. Settlement is “an agreement ending a dispute or law suit”. Do we want to simply end disputes or solve them? 

I am not in favour of the traditional one-day mediation held just before the start of an arbitration or trial after all procedural legal steps have been taken. I think that is a poor option for our clients. 

How do we currently resolve disputes?
Under the current model, established legal reasoning is the dominant force –the current paradigm. Disputes are fought between litigants represented by legal advisers whose duty it is to promote the views of their clients. The default position is to attack the other party’s weaknesses while continually drawing attention to the strengths of your own case. 

Traditional one-day mediations take a similarly adversarial tack. 

There is little distinction between the Court system and the one-day mediation. Both apply long-established principles of legal reasoning to the facts involved. The parties, via their legal advisers, focus on their own strengths whilst highlighting the weaknesses of the other party. In mediation this is often seen in the opening statements of the parties (typically read out by the legal advisers) and the reluctance to concede on polarised factual positions. 

Legal reasoning is the pinnacle of logical and rational thinking and is the culmination of a 2,500-year old love affair that assumes such thinking is the greatest manifestation of intelligence and is the only basis on which an advanced civilisation should conduct itself. 

We have developed this thinking at the expense of intuition, feelings and creativity. Einstein summed this up perfectly: 
“The intuitive mind is a sacred gift and the rational mind is a faithful servant. We have created a society that honours the servant and has forgotten the gift.”

The origins of this love affair rest with Aristotle, Plato and Socrates. Their teachings provide the cornerstone for the way we operate in society today, the way we educate people and the operation of our legal system. 

Given that judges are first lawyers and most, if not all, mediators also have legal training it is small wonder that our current model perpetuates this focus. Concepts such as creative outcomes, empathetic listening, synergies, win-win etc. are terms that, while often bandied about in mediations, are not often part of the process. They make for good sound bites but little else. 

Legal analysis focuses all too often (if not exclusively) on the points of difference: the negative, and ignores the common ground between the parties, the agreed points: the positive. Legal cases are determined and mediations settled based on the very narrow confines of this focus. But as the world moves from the competitive (adversarial) model to a collaborative model in terms of economics, commerce and human relationships, there is an opportunity for debate on how disputes are best resolved. 

What creates disputes? 
We cannot avoid issues or problems occurring in life. However, we can avoid disputes. 

An issue is “an important topic or problem for debate or discussion”. A problem is “a matter or situation regarded as unwelcome or harmful and needing to be dealt with and overcome”. 

Einstein wrote “You cannot solve a problem from the same level of consciousness that created it.” 

By continuing to apply traditional legal practices and procedures, it is questionable whether we are applying a higher level of consciousness (or anything new) to the issues with which we are asked to assist. 

Black’s Law Dictionary defines a dispute as 
“A conflict or controversy, especially one that has given rise to a particular law suit.” 

A dispute involves the parties holding subjective opinions that evoke strong negative emotional responses. The way we react to an issue or problem turns it into a dispute. Emotions are our reaction to the thoughts we have about the issue. 

Take away the subjective and you no longer have a dispute. Subjectivity, identity and judgement (right/wrong, good/bad, etc.) turn issues into disputes because they evoke emotions that cause the parties to feel the need to protect their identity and their position. That is the same whether you are dealing with a husband and wife going through a marriage dissolution or two multinational, billion dollar, publically listed companies. 

Disputes are about human emotions and human interaction. They are not about the underlying issue but about how we react to that issue. They reflect the formula: Event + Reaction = Outcome. 

To change the outcome you have to change the reaction and learn to respond instead of react. 

Disputes are also about history. Historically we have been taught to fight for our rights, fight poverty, fight terrorism, fight drugs, to be competitive, to beat the other side, to gain competitive advantage. As lawyers we are taught to fight for our client’s rights, to argue our client’s side of a dispute in order to win court cases. 

A sense of individual identity is on the one hand necessary (as in, I am Paul Sills), but on the other hand it is dangerous because it encourages us to view any issue that arises as a challenge to our identity (that egocentric idea of being a particular person, living in this country, with this heritage, holding these opinions and these judgements). 

What drives disputes? 
A party’s emotional and subjective reaction to an issue lasts only so long. You have an argument with your spouse and say something silly. How long do you hold that feeling? If you are smart – not long. As soon as you become calm and balanced you regret what you said and hold a different opinion. 

Does a party stay agitated for the two or more years that it takes to get a matter to trial or mediation? No. 

The legal process takes over as the fuel for the dispute long after the parties’ emotions have dissipated and they want to move on to some other issue. The parties then start to gain validation for their original subjective viewpoint and emotions from the legal process itself. How? – 

(a) Lawyers focus only on the strong points of their client’s case and the corresponding weak points of the other party’s; 
(b) Lawyers fuel the debate by sending subjective and emotionally-charged, egotistical letters to one another; 
(c) The extensive time the parties put in to the dispute (through discovery, briefs of evidence, strategy meetings, etc.) refuels their emotions; and 
(d) Significant legal costs add to a party’s desire to win and to be validated(and to try to recover some of those costs). 

Lawyers often cause the fi re to get hotter! We do too little until it’s too late to take the heat out of the dispute and work to get the parties to a position where they can make calm, objective and non-judgemental decisions. 

Why does the legal process do this? Because: 

(a) Lawyers are trained to work within the framework of legal process and to accept time-honoured (but not often challenged) procedures; 
(b) The law trains us to think with our intellect, our heads and not with our intuition. Our heads are where we create subjectivity and judgement. It is our thinking mind that creates our identity and our thinking mind that reacts when that identity is challenged; 
(c) Lawyers and the legal process focus on the differences between the parties and not the similarities, the uncontentious or the agreed. So we often turn molehills into Mt Everest; 
(d) Lawyers charge by the hour and may have no true incentive to see matters end quickly. It can be too easy to allow the legal process to run its course without searching for more creative and effective options for early resolution;
(e) The late timing of when we mediate supports the legal process and the lawyer’s way of viewing things rather than the balanced and effective resolution of the underlying issue. 

We typically mediate close to trial and at a time when the legal process has run for several months or years and the parties are entrenched in their own view of the case: why they are right and why the other side is wrong. A mediation held against that backdrop is therefore more a war of attrition than it is a genuine attempt to take the heat out of the dispute and bring the parties to a calm and balanced resolution; and 

(f) Mediations in this context become about the money and about not much else. 

How do we change? 
The answer lies in looking for more collaborative models upon which to base dispute resolution practices. Is there a better way to resolve disputes than simply to identify and attack what you perceive to be the weaknesses in the position of the other party, while espousing your strongest points? 

The suspension of judgement is key to the effective resolution of disputes. This requires a person to suspend the way he or she normally “listens” to somebody they disagree with. Typically we listen auto biographically. 

That is, we don’t actually listen to the speaker, we sit there and make judgements on what they say based upon our own experiences and our own conditioning.

We then await the opportunity to respond, based on our view of the world – our autobiography. The life experiences of the parties are not the same so subjectively they do not agree. 

That is hardly surprising – they have not even heard one another. They have heard themselves react to what the other person is saying. 

True empathetic listening is to suspend judgement and to actually hear and understand what the other person is saying. 

In the next article (Issue 13, 17 May 2013) we will look at an alternative paradigm. 

Paul Sills is a mediator and barrister. After a number of years as a commercial barrister and as a businessman, Paul decided to merge experience gained in both areas and focus his energy on problem resolution.  

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