Stephen Walker who is also a Bloomsbury author and mediator introduces this blog post from David Richbell who sadly died last week.
David Richbell was one of the great men of mediation. Not just in the UK but also internationally. Renowned and revered as a mediator, mentor, trainer, innovator and thought leader David leaves an immense legacy. His magisterial How to Master Commercial Mediation in which he generously included contributions from so many other mediators is a fitting memorial.
David submitted this blog post shortly before his sudden death. Read it, not just out of respect, but to learn about the essence of mediation and to see again the essence of David, his modesty, good and humanity.
Mediation is common sense, something that seems to be distinctly lacking from other dispute resolution processes. I feel it also offers a much greater chance of justice – not least because life is not binary, either right or wrong, but a whole tapestry of shades and colours. So any system that says to one ‘You’re right’ and to the other ‘You’re wrong’, must be a flawed way to resolving a dispute. Mediation allows a settlement anywhere on the spectrum of outright win to outright loss, and it returns the power of deciding where the settlement fits in that spectrum to the parties (who are the ones most affected). No third party to decide the outcome – the decision is solely the party’s and there is no deal unless both/all parties say ‘Yes’. If they cannot accept the best settlement on offer, they have the power to say ‘No’ and go down another route. But the fact is that most mediations settle – around 80% - and the settlements stick because they are the party’s own deal, not ones imposed by others. The parties own the outcome, it is theirs, and so they make it work.
So why do we need Mediation Awareness Week? If mediation makes common sense, why did only 12,000 (according to the CEDR survey this year) cases go to mediation? The answer has to be ignorance. The people who benefit most from mediation are the ones who least know about it. For some strange reason the business organisations, such as the Chambers of Commerce and the CBI, have done little but acknowledge mediation as part of the available dispute resolution processes, but enthusiasm in the main is lacking. A cynic would suggest that such organisations are populated by lawyers, a profession where many still see mediation as a threat to fee income and to the true role of the litigation professional. However, there are pockets of activity that give hope – Manchester Chamber being one. They have a panel of mediators on offer to mediators and do promotional workshops to help members to understand and use the process well. Others need to follow because a cheap and efficient way of resolving disputes is in their member’s interests. And it offers a chance or restoring fractured relationships.
It is ironic that the government promoted BS 11000 which became ISO 44001 on Collaborative Working, which encourages businesses to negotiate co-operatively rather than adversarialy. Yet what is public about the Brexit negotiations suggests that both the UK and European teams are not putting theory into practise. I know of no mediators involved in the negotiations. What an irony! All this talent available, all this knowledge that better deals result from co-operation, yet the country’s future is being decided by people who seem to enjoy a cliff-hanging, who-blinks-first style of negotiation.
And, of course, the government has signed up to using mediation ‘where appropriate’. Brexit is obviously not appropriate. Getting the best deal for both the UK and Europe is obviously not on the agenda. Or perhaps it is and we just don’t know about it. After all mediation is a confidential process!
Confidentiality is another of the benefits of mediation of course – returning common sense, returning the power of deciding the outcome to the people most affected by the dispute, and getting there in a confidential forum where an independent third party helps them get the best deal. So what could be against that?
Well, some cases need a decision to be made by others. Not many – where a precedent is needed (but not many people want their case to be a precedent); drug-taking in sports (but mediation can be used in rehabilitation); criminal cases (but restorative justice works well); difficult to think of others. Of course, access to children and division of property in family cases but I am concerned here about business disputes.
So if so little is against it, why is there not a global acceptance of this human, sensible, cheap and speedy form of justice? It must be ignorance. Which is why we have Mediation Awareness Week!