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Prevent the War – Use Mediation Strategically

In order to be faithful to the title of this article it is only prudent to first understand why the analogy of war is used. It is used because it represents the most extreme of adversarial engagements. The term is emotionally charged, it immediately summons heartfelt images; ecstatic victories and devastating massacres. It is used within the context of this paper to superimpose the perceptions and historical lessons learned onto another adversarial process; adjudication. It does this in order to recognize the intrinsic disadvantages of any adversarial process. It reminds us that although highly effective and necessary under certain conditions, it can come with great costs and should be used with careful discretion.

In favourable circumstances a competitive, ambitious, mutually respecting disposition may arise as is the case often in sport, but often a combative, aggressive, antagonistic attitude can emanate from the parties. The adversarial process has proved to be an effective tool in the adjudication process as a means of exploration and discovery of fact. It provides an objective basis for comparison and contrast between the parties and the necessary incentive to win which drives the participants to perform optimally in searching out and defending the truth. This approach is useful for searching out facts which have already occurred but the polarization of the parties and the subsequent attitudes that arise due to this polarization as described above can result in less than conducive conditions to negotiating terms that are mutually acceptable. Mediation has three primary advantages over adversarial processes: The reduction of legal costs and risk, the establishment and preservation of relationships, and procedural flexibility.

Parties are often compelled towards mediation in order to minimize the time, risks and consequent legal fees incurred. Essentially disputes will fail at the negotiation stage when one or both of the parties believe that the offered agreements are inadequate for acceptance. This could exist on many grounds, financial or otherwise. There is always the question on the mind of the plaintiff of maximization and minimization on the mind of the defendant. Viewed strictly through this prism of opposing interests it is clear to see why disputes require adjudication.

The defendant will be hesitant to offer as much as they think the other party will be able to receive in court because they know the opposing party will not want to incur the time and financial expenditures that go along with a trial. The plaintiff is aware of this and also cognisant that the defendant has an equal if not greater amount to lose by taking the dispute to trial; due to the defraying of a portion of the legal expenses of the winning party if they lose, may refuse to settle for the lesser amount.

The plaintiff however is often placed under the financial burden (other than under a contingency arrangement) of covering all of their costs until which time a settlement is finalized and paid. Due to the slow workings of the adversarial process this can be a particularly onerous task. The dispute at this point denigrates into a glorified game of “who blinks first” with each party hoping the other come to their senses first and makes a reasonable settlement offer. In most cases, we see an otherwise intransigent party reconsider their position with the presentation of a Rule 49 offer.

Possibly most fundamental to the mediation process is it’s ability to establish co-operative relationships; incentivized through the fundamental precept requiring any agreement to be mutually consenting in order to be enforceable. This co-operation forms the basis for discovery and exploration of the interests of each party and the most effective means of furthering those interests in a mutually beneficial manner. Co-operation enables the necessary communication for these exchanges to take place and firmly establishes the interdependency of the parties in reaching an effective resolution. Furthermore it provides the basis for the parties to see past their own narrow and possibly opposing interests towards a solution that is no longer zero-sum.

A third advantage is the procedural flexibility inherent in any informal and mutually agreeable process. Conventionally the remedies available in adjudicated decisions have been monetary or injunctive in nature, the scope of which is far narrower than would be available in mediation due to the co-operative identification and evaluation of interests and the creative manipulation of those interests to further the agendas of both parties.

Another noteworthy aspect of mediation is its modular aspects. Mediation is not required to be a complete solution. Individual issues within a dispute can be mediated whilst leaving others for adjudication. Also the use of independent standards conventionally unused and unrecognized in adjudication can be implemented in mediation, as in the case of shared cultural practices in order to arrive at a fair and expedited resolution. The issues themselves are not even required to be legal in nature. Often we find moral issues attempting to be redefined into legal concepts in order to justify dispute resolution. Mediation would allow these interests to be represented for what they are without the legal reinterpretation which might obscure their meaning.

In conclusion, society has always has had a growing trend towards complexity. This complexity has inexorably resulted in intimate and inextricable connections of interdependencies between the individuals contained within it. It is therefore incumbent upon us as individuals and collectively to seek out solutions that are consistent with that framework. Although it is likely that adversarial systems will always have a place in our society for disputes which cannot be resolved due to fundamental disagreements and opposing interests; the growing complexity of our social fabric not only necessitates but affords the opportunity to seek out non-zero sum opportunities of dispute resolution and the precepts of mediation play an important role in furthering that objective.