Challenging Mediation Myths
BY DR. CLARE SIEBER
Dr. Clare Sieber from the Medical Mediation Foundation sets out to challenge common mediation myths. In response to a study of lawyers’ reluctance to use mediation she says: “As a mediator, I felt I should present the counter arguments to these myths, based on my own experience.”
Why you should consider mediation (even if your lawyer seems reluctant!).
I recently stumbled across this article: Why Lawyers Don’t use Mediation. Although it is based on a survey of Scottish lawyers, the arguments – or myths as I would prefer to call them – against mediation are well rehearsed and relevant across the whole of the UK. As a mediator, I felt I should present the counter arguments to these myths, based on my own experience.
‘Mediation costs too much’ / ‘It will add further costs to the dispute’
With mediation, the costs are fixed and relatively low, whereas in litigation the costs are unknown and sometimes hefty. Additionally, let’s not forget that mediation is a significantly faster process, so the ‘costs’ of being in an unresolved dispute for months or years don’t apply.
‘We have a great case; we don’t need to mediate’
Even if you do have a watertight legal case that you are almost certain you will win, will you as the winning party really feel like a winner once it’s all over with? How much time, money, and stress will that win cost? Will the ‘loser’ actually comply with the order, or is it likely that the winner will have to spend more time and money enforcing their win? It is worth remembering that parties are more likely to comply with an agreement that they came to themselves (i.e. through mediation), than one that was handed down by a judge.
‘Mediation is just splitting things down the middle’
Disputes aren’t all about money, particularly those in the medical field, and even when they involve money it’s very likely that other items of value (apologies, acknowledgements, statements, and future ways of working etc.) will be introduced into an agreement. It is the parties in a mediation that are in control of the outcome and this allows them to craft their own unique agreement containing all sorts of creative additions that the litigation process is unlikely to be able to offer.
‘I/my client wants their day in court’
Usually what a party means by ‘wanting their day in court’ is that they want to say their piece, and they want that to be heard. Mediation allows the parties to say their ‘piece’ in a safe space that the mediator has created, directly to the other party, and the other party has no choice but to listen to it. A mediator will spend a lot of time making each party feel heard throughout the process. In a court, sometimes a party doesn’t have the opportunity to say what is important to them, never mind to feel listened to, bearing in mind that the court will only be interested in the legal issues.
‘Willingness to mediate is a sign of weakness’
I would argue the opposite; a party who is prepared to discuss the dispute, and perhaps their legal arguments, in a ‘without prejudice’ setting is actually showing strength, decisiveness and the courage to tackle the dispute head on and seek a resolution.
‘It’s too early, or too late in dispute to mediate’
Sometimes in a dispute the parties need to fully understand their positions and the legal arguments before they feel informed enough to make decisions about a settlement and therefore attend a mediation. A good mediator will be able to guide the parties on this and ‘know’ when the right time to mediate is. I work mainly with General Practitioners and I will often have a delay of between one and two months between the initial contact and the mediation itself to allow the parties the chance to be fully prepared for the mediation.
Mediating later in a dispute is more difficult, as the parties are more invested in their positions and these have become hardened over time, but there is still a significant amount to gain by settling a dispute on the day at a mediation than there is from waiting for the court date and the uncertainty of that outcome.
‘The ‘other side’ is totally unreasonable.’
All the more reason to mediate, I would say. That person is probably just looking for the safe space of mediation and the without prejudice nature of it before they ‘open up’. They are probably also desperate to be heard and talk through everything that’s gone on before and during the dispute, and all of the emotions that they are feeling, which is something that a skilled mediator can spend many hours doing with them.
In summary, once the parties understand that mediation offers them a ‘safe space’ where they can try to reach an acceptable way forward together rather than a potentially protracted, adversarial process in court (bearing in mind that they can walk away at any time with impunity) few will not see the benefit of giving it a go. I would encourage all lawyers to propose mediation to their clients.