A mother goes into her kitchen to find her two daughters arguing over the last orange in the fruit bowl. 

She intervenes, taking the fruit from the children and cutting it in half.  Each daughter is given half the orange.

One daughter goes into the lounge and sits down to peel her half of the orange. She throws the peel in the bin and eats the fruit. The other daughter stays in the kitchen, carefully removes the peel from the fruit, throws the fruit away and uses the peel to bake a cake.

The knife represents the law: the equal division was a legal solution. But the outcome could have been very different had the mother asked: “Why do you want the orange?” Had she done so and each daughter answered honestly, then both could have had 100% more. The mother could have added value at no cost – with the chance to gain even better involvement with her hungry offspring.

Mediation is a key form of Alternative Dispute Resolution (otherwise known as ADR). Alternative here means an alternative to having a decision imposed by a judge in court.

Mediation is a consensual process, based on self-determination that involves the participants in the dispute meeting with a neutral third person. The mutual aim is to find a resolution to the dispute or problem that the participants face.

It is a confidential and without prejudice activity that allows the participants to explore the full range of potential solutions in a safe environment. The mediator may encourage the use of principled negotiation, based upon reason and objective criteria. The mediator may reality-test the perceptions of fact, advantage, risk, and cost; and thereby assist the participants to find a mutually acceptable solution.

The solution need not be, and often is not, an outcome that a judge might or could properly impose through a decision in a court (which is limited by legal constraints, rights, and precedents). It is simply the unique resolution found by the participants in the mediation that is ‘good enough’ for them in all the circumstances.

The resolution is often more comprehensive and creative than a judgment or an arbitral award.It can provide a “win-win” outcome for the participants. As part of the search for a solution a skilled mediator will often look for added value which is often missed in mainstream negotiations but can be a way of removing deadlock.

The reasons to mediate include benefits to the client or participant in terms of costs, outcome, speed, reduction in hassle, and confidentiality. By mediating, the client or participant also avoids the negative aspects of a court process, such as sanctions and risk.

Some will be aware of the judgment made by Mr Justice Norris in a boundary dispute in October 2014 when he echoed the words of Sir Alan Ward in Oliver v Symons [2012] EWCA Civ 267:

“I wish particularly to associate myself with Elias LJ’s pointing out that this is a case crying out for mediation. All disputes between neighbours arouse deep passions and entrenched positions are taken as the parties stand upon their rights seemingly blissfully unaware or unconcerned that they are committing themselves to unremitting litigation which will leave them bruised by the experience and very much the poorer, win or lose.

“It depresses me that solicitors cannot at the very first interview persuade their clients to put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come.”

It is on the positive reason to mediate that focus should be placed. The range of extra-judicial outcomes, the confidentiality, speed, and savings in costs and management time are particularly strong features. The saving or recovering of relationships, and the keeping of control with the participants (as opposed to handing it to a judge or an arbitrator) are others.

With referral to mediation being increasingly encouraged by the government, Walker Foster is proud to announce that three of its lawyers are accredited mediators.

If you believe mediation might benefit your organisation or you want to discuss the merits of bringing a dispute to mediation, then please contact: Keith Hardington, Nick Dent, Luca Angarano at Walker Foster, 3 High Street, Skipton, BD23 1AA, or by e-mail: cfl@walkerfoster.com