A new Approach to Dispute Resolution (“DR”)
Presented by Mary Banham-Hall, Family and Commercial Mediator, Managing Director and founder Focus Mediation, Solicitor 33 years and mediator 14 years.
It’s not enough to be clever, or to do the same things better. We need to do things differently. Einstein’s definition of madness is to keep doing the same things (even if you change them a bit) but expect different results. You’ll just get more of the same, which is where we are headed now.
History shows us that the most powerful motive for conflict is people’s beliefs. Whether it is Jew against Muslim or Christian against Jew – or different factions of Christians or Muslims against each other – the conflict is about their beliefs and their determination to force others to think the same way. Litigation is frequently motivated by beliefs – a profound belief in your rightness and the other person’s wrongness – and a passionate wish to convince the other person and the judge – that you are right, to have your beliefs validated by others. To win.
So what does the legal route do and how does this compare with the mediation route – and how might we use them both – both routes – recognise each have equal validity and use the most appropriate tool for each job – the job being the resolution of the dispute?
Key drivers of insisting that mediation has to be voluntary and secondary to litigation are:
The belief that people have a human right to have access to justice BUT
· Justice requires a range of interventions to resolve conflict, equally valid and complimentary – “justice” should encompass non-adjudicated solutions
· What about the other party’s human right to try to try to stop litigation? What about those cases where many, many attempts are made to get a party to mediate and they are either rejected or nominally agreed to – but made impossible because the date/mediator/venue cannot be agreed? So people are locked into impossible litigation which is too expensive – with no way out except trial
There is a belief that litigation is and should be the primary way of resolving disputes, for whatever reason and that mediation is some sort of secondary option you may try if you both want.
· What about the fact that in so many cases mediation is the only way that people’s beliefs will be changed or the way they see things moderated and they will be able to agree on anything, even if it’s that they won’t agree what happened but want to settle the case?
· Why do lawyers have the power to prevent the one thing that will settle many cases?
What Family Mediation shows 1999
Before 1999 and the compulsory assessment for mediation before legal aid was granted – there were c 600- 800 family mediations a year. Afterwards this rose to 14,500 mediations a year. The Legal Services Commission withheld legal aid without mediation referral (a civil servant did this) - it was an effective filter. When people heard about mediation from a mediator many used it.
Mediation needs to be embedded in the dispute resolution system at two key stages minimum, possibly more. If litigation isn’t working to help people to settle, then more litigation is rarely the answer. It is like keeping on with an ineffective treatment to the patient’s detriment. A different treatment is needed – and mediation should be required to be attempted. It won’t be as popular – because it doesn’t offer the allure of persuading the judge you are right and the other person is wrong and them losing and you being validated. Also, the angrier the A/R is the less likely they’ll want to mediate – and the more they need to do so. However, the search for an elusive “justice” often financially kills the patient and swallows up any financial gain the case may have brought if it is “won”? (Beresovsky/Abromovich)
A Visual Representation of the Dispute Resolution Processes
LITIGATIONClaimant seeks vindication
“I’m right, you’re wrong, this is my evidence and the judge will agree with me”
“My evidence/argument/lawyers are better than yours. You are wrong and I’ll be proved right and win and my beliefs will be validated, not yours”
The litigator suppresses and ignores emotions, reason is all – but it has to be legal reason relevant to the case that is being argued / ROUTE
Respondent seeks vindication
“I’m right, you’re wrong, this is my evidence and the judge will agree with me”
“Your evidence is wrong/mine is better/ you are lying, the judge will agree with me and you will lose. I shall then be proved right and you will be sorry and know you made a big mistake”
All the power in the non-legal reasoning and beliefs is side-lined and suppressed, but it fuels the litigation. Beliefs cause wars. Beliefs are at the root of it all.
RIGHT BRAIN
DEALS WITH REASON
MEDIATION
Claimant
“It really upsets me that they don’t care about the effects this had had on me/my business/family. They have destroyed XYZ and shouldn’t get away with it” (this element is suppressed in litigation as irrelevant to legal argument and the case)
The mediator acknowledges all beliefs/feelings fuelling litigation/conflict whether legal or otherwise; the mediator re-frames beliefs to each party to help them understand the other side’s beliefs and potentially empathise and change beliefs/position.
The mediator helps each party to understand they will probably never agree on the “truth” – ever – but that’s OK, they don’t have to agree on the truth. If they want to stop the tarantella of litigation, they can agree to settle without agreeing to the other person’s version of the truth
LEFT BRAIN / ROUTE
Respondent
“They don’t understand how hard we tried. They wanted the impossible and it was always going to go wrong – it’s their fault and look at the effect it has had on me/my business/family” (this element is not acknowledged or dealt with in litigation, advisers are soothing, but ignore clients’ real motivation)
The mediator challenges beliefs gently encouraging the parties to adjust their world view. This is done in such a way that it is not irresistible force re-enforcing immovable object – which is the effect of litigation.
The mediator helps people to settle without losing face, without admitting defeat, without losing – often agreeing something a court could not have ordered
DEALS WITH FIRE- ANGRY CLIENTS IN DENIAL AND WANT TO THINK IT’S RATIONAL NOT EMOTIONAL or PSYCHOLOGICAL
National Audit Office Report into Family Mediation 2007
“Mediation is faster, cheaper, and less adversarial than the courts – it is the duty of legal advisers to tell clients about mediation, but they have a financial disincentive to do so many bypass it”
1/3 clients interviewed by the NAO had not been told about mediation by lawyers – of which 40% would have tried it.
Mediated L/A case / Non mediated L/A case£754 / Average Cost / £1,682
110 days / Duration / 435 days
NAO concluded the Legal Services Commission should promote mediation
Legal Aid for Family Private Law cases cost the taxpayer £360m p.a – until stopped this April. Mediations costs £16m pa.
“LSC expects clients to mediate where possible but some solicitors dissuade and prevent people mediating”
“My solicitor never mentioned mediation – I got a letter saying I’d declined it – when I asked about it I was told it was another standard letter and to ignore it”
“My solicitor wrote to my partner’s solicitor asking for mediation but they refused and said it would not work”
The mediator tries to engage the parties but 44% of their partners were unwilling and 12% of applicants
In Australia, NZ, Norway and parts of US and Canada, family mediation is compulsory. In UK and most of Europe it’s voluntary but encouraged. In Sweden 90% of separating couples use it
In April 2011 the MIAMs was extended to all family litigants’ not just legal aid. The courts are ineffective at preventing issue without a MIAMs and s MIAMs are failing and family mediations are falling again. With honourable exceptions most lawyers will not promote mediation and indeed as the NAO report says, will bypass it whenever possible, as they have a contrary interest to earn fees from these cases.
2012/3 MIAMs are not working any more – they did to start with but solicitors now know courts are issuing without the mediation certificate of attendance at a MIAM or of mediation having broken down (FM1). The protocol is dead in the water. Now we have no legal aid and no funding code referrals and it will be next year before MIAMs tightened, if they are.
We need compulsory referral to a mediator to hear about mediation (MIAMs and we have to consider compulsory mediation – ROBUST encouragement to mediate by the courts would help MIAMs to succeed
There’s an established ritual in preventing mediation. Witness Family cases and the frequent failure of MIAMs because:
· Lawyers routinely issue without the requisite MIAMs, evidence if still needed they will subvert any system to retain work (“Mary if you think I spend what I do on marketing to get work in to hand the cases to you, you are kidding yourself; you will not mediate my cases”) and I don’t!
· National Audit Office Report of 2007 into Family Mediation - Clients trust their lawyers who prevent them mediating because they have a conflict of interest to earn fees
· Litigants think settling is impossible (mediation won’t work because the other person is too unreasonable – never they are unreasonable!) but also the adversarial system drives them away from thoughts of compromise from the start
· Strong encouragement to engage is required where one party has everything to gain by evading a settlement – if they keep the pension/house/money. This will need litigation then mediation
· Therefore the “right” referral time will differ depending on the case
· Mediation at court is close to compulsory and is hugely successful (small claims telephone mediation, Milton Keynes Children Act First Appointments)
· Why is this successful intervention so limited? Do higher value claims not deserve the chance to settle?
Without systematic referral to mediation within the legal system, family mediations are falling again. if there is no compulsion there is little mediation this is because the auto route is exclusively litigation. We have to embed mediation too.
Let us go “up” a level and design a better system - what we might try to do. A vision of a more functional system designed for the twenty-first century
Use left brain (emotional intelligence) not just right brain rational intelligence (statute and case law based system) to settle cases. Our current system ignores the power and influence of the entire left brain emotional aspect of disputes, which needs to be regarded as respectable and not something litigants should deny or feel embarrassed about – something they have to translate into a valid legal narrative. This is because these feelings are often the main dispute driver. Our system at the moment is akin to seeing someone with an infection who needs anti-biotics, but not using the appropriate remedy – insisting on surgery (litigation bias).
Here is my proposition:
We recognise beliefs and feelings are as important and legal argument and that mediation will deal with one aspect of a case and court with the other. We bring both tools to bear on cases. We no longer afford primacy to litigation, however hard that may be for lawyers. This is because the people in dispute are more important than the legal system that is supposed to serve them – and they deserve to engage a functional system that works well, effectively and efficiently. They need the high priests of DR to know more than them about what works in resolving disputes and to build it into the system. To repeat the medical analogy, you wouldn’t amputate someone’s leg because they had an infection. The doctor would not allow it and the DR system shouldn’t allow it either. Litigation in many cases is about as suited to the case as surgery for an infection.
The maximum costs savings in family cases are pre-issue and that is why the MIAMs is so critical – it offers a cost effective sensible alternative to the adversarial system, before everyone gets too positional. If that point is missed (e.g. a party won’t engage) then there should be a second route to mediation later at the first appointment if there has previously been no miams – to pick up cases where one party was refusing to engage without the compulsion of a court application. Then another referral point is required when the total costs reach a certain % (?20%) of the value of the claim (%s not critical and for debate) or the case gets to a certain stage, whichever happens first - if mediation itself had not been tried there should be robust encouragement to mediate on the grounds of proportionality of the costs to the value of the dispute..
Some sample cases show the problems with litigation bias
I’m currently mediating a high value family case where both parties are desperate to mediate. Mediation was going really well when the husband’s solicitor “insisted” he issued proceedings – this after a year of failed negotiations and where the husband is hanging onto the income producing assets and failed to maintain the wife, which will not amuse the court and he will get short shrift. In other words, the clients didn’t want proceedings, it’s not in the husband’s interest they are started, but his solicitors issue! The court did not require the FM1 (which I could not have issued) and the proceedings were in complete contravention of the protocol that everyone is ignoring. Mediation and litigation now proceed in tandem. (Case now mediated to a successful conclusion despite issue of proceedings)