Mediation – A Discovery

By Charles Marquand

Charles Marquand is a barrister (advocate) in London with an extensive practice in financial regulation and commercial law. He also has the rare and vital quality of empathy, which made him look for ways of resolving disputes outside the sometimes harsh, black and white binaries of winners and losers. There was a third space to be explored – that of mediation, where the two sides can be brought around to a well-structured and reasoned compromise. Can this method be applied to various kinds of conflict, including situations of ethnic violence? As a keen observer of European and Indian politics, Charles attempts an answer here.

I am a barrister and have practised in some way, shape or form for over 25 years. During the course of that time I have seen that litigation – at least in the realm of private law – can be a time-consuming, costly and ultimately destructive process which leaves all parties, at best, profoundly dissatisfied. The “winning” party only gets what he what he thought were his just deserts, no more. But he pays heavy price for this. The likelihood is that he will not recover much more than two-thirds of his financial outlay; but worse than that, he can never recover the emotional energy spent in turmoil and anguish that necessarily accompanies litigation. As for the losing party; he loses. He loses financially, emotionally and socially. He has to digest the bitter truth, made public, that he was wrong.

But there is a deeper loss suffered by both parties. Litigation before a court or arbitral tribunal is an admission that one cannot arrange one’s own affairs as one may wish. In litigation the parties say, “We cannot resolve our conflict; impose an outcome of your choosing on us.” In effect the parties are saying they no longer wish to be in control. In short, in litigation parties lose their autonomy.

Mediation is the exact opposite. Mediation in all its forms (and there are many) rests on the fundamental notion that people are autonomous; and as autonomous beings they can resolve their conflicts themselves. They may not wish to; but that is a different matter. They can do so if they allow themselves to.

So how did I learn this?

Having promised myself for many years that I would do so, about four years ago I fulfilled my promise and took a course to become a mediator in civil and commercial disputes. I was fascinated.

The approach taught was what is called “facilitative”. By that is meant the mediator seeks to facilitate a settlement between the parties. Essentially, through a process of frank discussion with each party in private, and shuttling between the parties, the mediator helps the parties to understand the true strength and weaknesses of their respective cases, the reality of litigation and possible solutions. But the solution is fashioned by the parties themselves and can incorporate anything the parties choose. Litigation, constrained as it is by legal principle, tends to black and white outcomes. In contrast, mediation, unconstrained by legal principle, can lead to any outcome the parties want. A solution might incorporate a compromise or variation of another contract which wasn’t even the subject of litigation. Nothing is necessarily off the table.

To give an example of a contract between a restaurateur and fishmonger: the contract provides that the fishmonger is to supply ten fish each day in the morning to the restaurateur. One morning the fishmonger, delivering ten fish, finds that the restaurant door is closed. He leaves the fish on the doorstep. A few minutes later a passerby seeing the fish unattended, decides to take them. The restaurateur arrives at the restaurant to discover his ten fish haven’t been delivered. He demands delivery from the fishmonger. The fishmonger demands payment. Ill-tempered and unfruitful arguments ensue. The restaurateur issues a claim for damages; he paid for ten fish, which he didn’t receive. The fishmonger counterclaims for damages: he delivered ten fish, for which he hasn’t been paid. Lengthy submissions and reference to arcane precedent by highly paid counsel might persuade the judge that the true meaning of the contract was that the fish were to be delivered into the hands of the restaurateur; or lengthy submissions and reference to arcane precedent by equally highly paid counsel might equally persuade the judge that the true meaning of the contract was that fishmonger was only required to deliver the fish by a given time each morning. But whichever argument wins the day, the judge can really only find for the restaurateur or the fishmonger. Either the contract was performed and the restaurateur must pay the fishmonger, or the contract was not performed and the fishmonger must pay the restaurateur.

A mediator on the other hand can help the parties to arrive at their own solution. Perhaps the solution will be a partial payment; or perhaps the fishmonger also supplies vegetables and a new contract could provide for cut-price vegetable delivery for a period to compensate for the loss of the fish; or perhaps the restaurateur could provide discounted catering at the wedding of the fishmonger’s daughter; or perhaps it could be all of these, or some of these, or none of these.

One particular exercise from the course sticks in my mind. We were fourteen; seven lawyers and seven non-lawyers. We were asked to divide into seven teams comprising one lawyer and one non-lawyer. We were given a very simple set of facts: a claim for a certain amount by the claimant, a counterclaim for a certain amount by the defendant, an amount of costs already incurred for each party and a projected amount of costs to be incurred by each party to the conclusion of the trial. We were given fifteen minutes to predict the best and worst possible outcomes for each party in monetary terms. We produced a total of fourteen predictions. It’s hard to think of a better illustration of the unpredictability of the legal process; and I might add, of how fair-minded and objective individuals can reach wholly different conclusions. Why then would any rational person submit himself to process over which he has no control and whose outcome can be so uncertain?

However, what about the irrational person? Or to put it another way: What about the conflict which resolves around non-material issues? What about the conflict where the solution is not a compromise reached after a rational consideration of material interests? This is perhaps where the model as used in civil and commercial disputes may be deficient. Some conflicts are, at root, not caused by a clash of competing material claims but by differing perceptions the parties of each other. Competing material claims may be no more than the ostensible vehicle for the hostile feelings the parties have for each other. If so, reaching a settlement on the material issues (assuming it’s possible to do so) will be unlikely to resolve the conflict for the long term.

Marital and neighbourhood disputes are classic examples of this kind of conflict. For example, a dispute between a couple about money – the principal wage earner thinks the other is spendthrift, the other thinks the wage earner is mean – could well really be a dispute about the need for autonomy, trust, security and so on. The wage earner is insecure about status; the other needs autonomy or to be trusted. A settlement which set out a weekly budget would be unlikely to resolve the conflict; either it would break down or re-surface in another guise. For these kinds of conflicts a different kind of mediation is required. This kind of mediation is often called transformative mediation since it seeks to transform the parties feelings; towards each other or about themselves or perhaps both.

A little while ago I took a course on this kind of mediation. I learnt about an approach which focuses on uncovering the needs and feelings of parties. In brief, the underlying theory is that much conflict arises when an individual’s needs (e.g. for security, respect, autonomy) are not met; maybe by the other party, maybe by a third party or outside circumstances. When needs are not met, negative feelings result; fear, anger, frustration et cetera. The negative feelings give rise to conflict. A resolution can only come about once the unmet needs and the resultant negative feelings are identified. The task of the mediator is to explore with parties, together, through non-judgmental discussion, what needs are unmet and what feelings that gives rise to. A solution can then be crafted by the parties, with the mediator’s assistance, which addresses those needs and feelings.

This approach – an approach based on what is called non-violent communication – clearly requires a great deal from the mediator. It requires the mediator to understand his or her own emotional triggers (not least to learn how to identify the parties’ needs and feelings), to build trust with the disputants and to explore patiently the inner sensitivities at core of the conflict. These are processes which are never complete. There is always more to learn about oneself and about others. And I have to confess, I am still learning; but I am also continuing to assess the implications and application of an approach so focused on individual emotions.

This is where I’ve got to. The transformative model which I have learnt about is a superb method of resolving a particular kind of conflict; where the dispute concerns individual unmet needs and consequential negative feelings. Where the dispute primarily concerns competing material interests, where the parties are likely to be “lawyered-up” to the eyeballs, it is probably inappropriate. The mediation process in those situations is essentially a constructive bargaining process, informed and structured by the mediator; not an exploration of needs and feelings.

But there is a category of conflict where I think a third approach is required. This category comprises disputes where the principal driver is a clash of identity; where the dispute is essentially social rather than individual. For example, Serbs, Croats and Bosnians in the former Yugoslavia lived for forty years with each other; not in segregated communities but as neighbours in direct and intimate proximity and by and large rubbing along tolerably well with each other. Yet the break-up of Yugoslavia led to a vicious civil war in which the children and grand-children of the Chetniks (Communist, predominantly Serb, partisans) and Ustaše (Croat Fascists), referring to each other in precisely those Second World War terms, slaughtered one another and interned one another in concentration camps simply on the basis of nationality. The conflict was not about clashing material interests or unmet individual emotional needs. It was about identity; or to be more precise, group identity. And group identity is freighted with learned history, learned cultural practices and – crucially – learned characterisations of the “other”. The mediation process therefore needs to focus on these factors, since they are the principal drivers of this third category of conflict.

But whilst it’s easy to recognise the drivers of such conflicts, the process of mediating them is still for me – for the time being – uncharted territory. My next step is therefore to discover mediation models which address conflicts driven by identity. What I will discover, I do not know.


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