Beneath the Legal Dispute

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Beneath the Legal Dispute

Mediation is a process to facilitate disputing parties to resolve their grievance with each other. It is voluntary. It is non-binding meaning whatever said or proposed during the mediation process cannot be held against them. It is privileged. So, whatever said during or proposed cannot be disclosed in court. If it is, the court would ignore it. It is judicial policy not to consider documents or statements made during a settlement negotiation. This is to allow the disputing parties room to speak and bargain freely with the hope that that freedom provides space to explore solutions.

The process consists of a mediator speaking to the disputing parties jointly and separately to usher them towards conciliation or settlement. The goal of mediation is to identify and bring awareness to the disputing parties about the underlying reasons for the dispute and impasse so they can generate their own solutions they can agree on and commit to. A mediator is expected and limited to encouraging parties to generate their own solutions, not impose her own. She is expected to facilitate insight into each side’s respective challenges, constraints and complaints. At best, a mediation ends in a settlement agreement executed between the parties. Next best, it provides scaffolding for future mediation attempts. At worst, no resolution is achieved and the dispute is litigated.

I recently completed a two-day introductory course about mediation conducted by the Bar Council Mediation Committee. I took it up out of curiousity. I had my uninformed views about it and wanted to know how it actually worked.

My sense of it is mediation may be more common in the future. With litigation and arbitration being costly as it is and growingly so, disputing parties are likelier to resort to resolving matters between themselves instead of allowing their cases to rest on fine, elusive legal points, the outcome of which they have no control over. With litigants growing awareness that it is more affordable to mediate than litigate and it is sometimes better to have a direct influence over the outcome, it makes sense. The weakness of mediation is that it needs to hands two earnest reasonable hands to clap. Anything less turns the mediation into a charade.

I was pleased to discover that I enjoyed the role and approach expected of a mediator. What I liked best about the course was this insight: We must distinguish the position a party takes in a negotiation stems from the needs or interests that make them adopt their position. Sometimes, the position they take does not really serve their needs or interests. It is not uncommon for a person not to understand what they need, though they seem to know what they want. Our job as a mediator is to understand and deconstruct those unexpressed needs and interests or unwarranted assumptions then have the parties address those instead of their positions. It is a more fertile ground for exploring and finding opportunities to settle.

I like mediation because it adopts a psychological approach to the dispute. It tries to get into the interior of a dispute. It is concerned with acknowledging and addressing the underlying and historical reasons for the dispute. Mediation can also help frame a dispute into a healthier perspective for the parties so they can better empathise with each other’s situation. Ignorance and assumption of each other’s perspective is key to not being able to find a solution.

I am partial to the psychological approach because I believe that most legal disputes, if not all, have psychological and historic factors that drive or sustain them. Our legal disputes allude to our psychological wounds or make up.

They are apparent in family law cases. Maybe the petitioning husband is reenacting his childhood trauma caused by the turbulence of his parents divorce. They are less apparent in criminal cases. Maybe the accused is a serial killer because of the sexual abuse he received as a child. I contend that if we look deep enough into even banking debt claims or corporate fights, we are likely to find inferiority complex, narcissism, and inability to delay gratification, amongst others, at the bottom of it.

It is this belief that sometimes makes me feel ineffective and powerless about solving a person’s legal problems – because that is all I can do. I cannot go beyond that. I cannot nor am I looked upon as being able to resolve the underlying cause to a person’s legal problem which is rooted in psychology, culture, emotions, education and upbringing. I can defend a person accused of a crime, but I cannot prevent them from committing another. I can file a custody application, but I cannot help with mending fraught relationships.

Because in order to resolve a legal dispute in a meaningful and lasting way, I believe it is necessary and crucial to look and go beneath and beyond the legal dispute. The arena of legal dispute is the identified area of difference. The arena of human relationships is the potential area for commonality, empathy and resolution. At the end of the day, a human being stands beneath every legal dispute and a legal dispute is ultimately a human problem. When done right, mediation is a constant reminder of this.

For this reason, I think those in litigation and arbitration should consider taking a course on mediation. Even if we are not going to be a mediator, it gives us insight into how we can improve our negotiation abilities.

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