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The Briefing

Sometimes the middle ground is the firmest…

by Claire Aiken

27/03/2018

Whether its people, organisations or businesses, reproach and retribution through the courts should be measured and considered.

Justice delayed is justice denied, so said William Gladstone the Liberal leader whose tenure as UK Prime Minister will forever be enshrined with the history of the ‘Irish Question’ and his repeated attempts to introduce the Home Rule Bill in the 19th century

 

While there can be no doubt about the significance of the role the courts play in achieving justice across many facets of society, including business, there can often be a better way.  Whether its people, organisations or businesses, reproach and retribution through the courts should be measured and considered.  Sometimes the process is given due diligence but often it can be visceral even irrational.   All of this is notwithstanding the fact that ‘one person’s justice is another’s injustice’. 

 

From a business perspective it is often financially, physically and emotionally draining. Making no judgements on the merits or otherwise of Equitable Life vErnst and Young, the case made global headlines back in 2005 with legal fees in the region of £100m demonstrating that such litigation can be inordinately expensive and is often very difficult to prove.  I’ve no doubt in many cases negotiation and indeed mediation has been sought, but there needs to be a resolve within the wider business community and indeed across civil and family disputes to commit to the solutions that mediation can provide helping to ensure organisations and people do not implode.

 

Often negotiations to resolve issues between two parties can come to a shuddering halt as the two sides filled with their own stakes and entrenched in their position, lock horns and grind to an unsuccessful conclusion. As business leaders the ability to solve disputes is part–and–parcel of running a successful company, whether the disagreement lies between the company and a supplier or partner, or between two employees.  It is management’s responsibility to find that resolution and depending on the issue, skilled internal or external mediation will often resolve it.

 

Usually a mediation process will consist of separate preliminary meetings with each party, joint meetings with all parties to discuss and explore the issues, generating and developing options for resolution and eventually forming agreement. Of course, one of the underlying principles with all negotiations has to be the desire of both parties to genuinely form an agreement.  In most circumstances the mere fact that parties are willing to mediate means that they will consider moving on their position which is an important place to start. The mediation approach may also better support the potential for the preservation of a longer–term relationship. In addition, the result is attained by the parties working together with compliance to the mediated agreement being high. Recognising these benefits should address any concerns as to how impactful a good mediator can be.

 

One of the sometimes–overlooked impacts of mediators is the subtle change in perception they bring for all parties involved. Often during disputes there are only two sides which can make for a very difficult negotiation process leaving adversaries with nowhere to go when negotiation breaks down. The besieged and defensive mindset that occurs when this point is reached is extremely difficult to break. The impact, therefore, of having an independent skilled person uninvested in either side showing a route to resolution, can be hugely effective.

Judges in our court rooms are increasingly requiring cases to engage in the mediation process and the good news is that evidence supports the view that the demand for alternative dispute resolution in Northern Ireland is rising. 

The Bar Council of Northern Ireland has established a dedicated centre offering bespoke facilities and services to support the resolution of disputes outside the attritional court environment.  This setting enables trained mediators and arbitrators to use their very specific set of skills to reach alternative resolution options.  The Resolution Centre is to be welcomed, particularly across commercial, civil and family law disputes where conditions lend themselves to pursuing resolution outside of the expensive and often enervate litigation.

Of course, next month sees the 20th anniversary of one of the most historic and important mediation processes in modern Irish history.  In the early 1990s, which was the backdrop to some of the most horrific incidents of the troubles, few on the island of Ireland or anywhere else in the world would have predicted the universal settlement that was agreed in 1998. The willingness of all parties involved to compromise, which is needed in all mediation processes, was crucial along with a series of preceding events and actions which set the all important scene. However, while the Good Friday Agreement didn’t fundamentally address all the issues, because it couldn’t, there is widespread recognition that an agreement would not have been achieved if it hadn’t been for the highly influential mediation role of Senator George Mitchell.

While far from perfect there are learnings for all facets of society, including business, from that most significant of milestones. It reminds us that, irrespective of the genre, a skilled mediator can help identify unseen frontiers and sell it without bias to the organisations or individuals involved allowing them to create just enough space for agreements to be reached. As for businesses, sometimes they just need a way to get on with what that are best at……producing goods, providing services, creating employment and making profit.