‘Mediation Fails: The Fight is Off’ What can mediation deliver?
My niece and nephew were watching the TV the other day and noticed the following headline ‘Mediation fails – the Fight is Off’. Knowing what I do for a living they tuned in. How can a failed mediation prevent a fight they asked? The mediation in question was between two boxers – and – about the financial arrangements which were jeopardising the fight. The boxers and their agents could not agree ….. The mediation ‘failed’ – so the fight did not go ahead.
What I like about this story is that it calls into question our notion of success and failure in mediation. There are many views on what constitutes a successful or a failed mediation. Some musings on the subject follow. Success depends on the perspective of the parties involved in or affected by the dispute. Mediators may think it is a success if they get the two entrenched, resistant parties to the table and do their absolute best to achieve resolution. The parties will surely expect more – resolution, restitution, reconciliation, an apology, a gesture of good faith? Others impacted by a dispute also have needs. In the case above the boxers may have avoided more damage to their already ravaged physiques but promoters, venue owners and TV companies presumably have to manage any financial losses or losses of faith incurred. The mediation raised their hopes then what? We must not over promise for mediation and should give out clear realistic messages about what it can and cannot do.
Sir Rupert Jackson in a recent report Review of Civil Litigation Costs: Final Report (published on 14 January 2010) examines litigation costs and practice and looks at ways of working more effectively and efficiently, and reducing costs while improving quality. He does not suggest that mediation should replace litigation of course, as effective dispute resolution will always contain mediation and litigation style approaches. Parties in disputes will continue to want their day in court and many cases will be ill-suited to mediation. Sir Rupert comes out strongly in favour of mediation as a cost effective and user friendly alternative to litigation.
‘Alternative dispute resolution (“ADR”) (particularly mediation) has a vital role to play in reducing the costs of civil disputes, by fomenting the early settlement of cases.’
However he recognises that awareness of mediation is still low despite campaigning by leading mediation bodies like CMP.
‘ADR is, however, under-used. Its potential benefits are not as widely known as they should be.’
He makes several suggestions for how to address the awareness deficit. Including targeting key influencers and stakeholders with awareness raising campaigns; publishing flyers and information leaflets.
Mediation works, we know it does, but I watch this space hopeful that in the race to mediation we are honest as well as encouraging, realistic as well as enthusiastic. I hope we also realise like Sir Rupert Jackson that modernising dispute resolution also involves creating better, fairer formal processes. In the workplace huge amounts of money are spent on bureaucracy, prescriptive process and badly planned investigative practice.