Can mediation help us to have better conversations?

Did you know that you’re likely to have had over 89,000 heated altercations with your closest relations before you have reached the age of…...eight? As we progress through our lives, we will experience potentially millions of disagreements with those around us, meaning that we become “experts” in disagreeing.

Added to that, with the advent of social media and its impact upon the way we communicate with people with whom we disagree, the number of arguments that polarise and defy resolution appears to be at an all-time high.

As we look back over the last decade, some incredibly divisive events have highlighted our inability (certainly when looked at from the psychology of large groups) to have constructive debate and try to find resolution.

By way of example, think back to the events of 2016: Brexit and the Trump Presidency. Two of the most controversial and hotly debated topics in recent memory. Social media played a huge role in both of these events where effusive support for one side was met with a vehement torrent of disdain and condescension (and in some cases violence) towards any opposing view. These were not matters of debate, they were matters of tribalism.

The list continues as full-blown riots, assaults and “cancellations” take place as a result of people arguing over: BLM and slavery; Covid; vaccines; and gender fluidity, to name a few.

So, in this world where reasoned conversation and debate appear to be so lacking, what impact does this have on our closest relationships? As you may imagine, our ability to resolve issues which have an even more emotive element to them (such as family, health or personal issues) has not improved either. We live in a world where our social media acts as an echo chamber for our own views, opinions….and prejudices. Our confirmation bias is constantly reinforced to cement our beliefs that we are “right” and those with opposing views are “wrong”.

This can be seen most acutely when helping couples going through divorce proceedings. Emotions are high, there is often a long and painful history leading up to the breakdown of the marriage and then just to sprinkle some petrol on the emotional fire, there are often issues involving their children to deal with as well.

As family lawyers, we have to tread a fine line between resolutely defending our clients’ interests, without irreparably damaging their relationship in the process. We try to avoid antagonistic language and allegations which ultimately will make no difference to the outcome of a case.

This has led to the forthright encouragement of alternate dispute resolution (or Non-Court Dispute Resolution “NCDR”). Mediation is a fantastic tool in the family law profession’s arsenal, and, to my mind, it grapples, with both hands, this growing trend of defensive entrenchment which inevitably makes settling cases more difficult, more costly and less satisfactory for clients. Given mediation’s impressive success rate at around 72% for settlement on the day with a further 20% of cases settling shortly thereafter[1], it is unsurprising that mediation is finding its way into the limelight.

A good mediation should focus not on the positions of the parties, but on what their underlying needs are and encourage both sides to view the dispute from the other person’s perspective. A husband who is encouraged to view his “money grabbing” wife as a person who is fearful of how she is going to make ends meet once she loses the financial support of her spouse, is far more likely to be willing to reach a settlement. It should be more about listening to understand rather than just waiting for your turn to fight back.

There is an ongoing debate about whether mediation should be mandatory. Many other jurisdictions have adopted this approach such as Australia, Singapore, Canada and a number of States in America with mixed reports of success.

It has long been a cornerstone of mediatory practice that the parties should be entering mediation with a genuine intention to try and settle matters in good faith. However, it’s vital to distinguish between an obligation to attempt mediation and a genuine commitment to reaching a settlement in good faith.

The Court of Appeal in the 1995 case of Little v Courage, held that an agreement to negotiate in good faith was unenforceable as lacking the necessary certainty, Millett LJ distinguishing this from an agreement to “use best endeavours”.

The resistance to enforced NCDR was further strengthened by the comments of Dyson LJ in the case of Halsey v Milton Keynes General NHS Trust where he commented that an order “to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court”.

However, the recent case of Churchill v Merthyr Tydfil County Borough Council confirmed that the comments of Dyson LJ were obiter and the court does indeed have the power to order parties to undertake NCDR. Although, the Court of Appeal made clear that parties should be ordered to take part in NCDR and mediation only if that does not impair their rights to proceed to trial and is proportionate to achieving a settlement fairly and quickly – and at a reasonable cost.

The Court of Appeal even went as far as to suggest that mediation, may still be beneficial for parties who do not wish to mediate, so long as they were using a suitably skilled and experienced mediator. The family courts have followed the thrust of Churchill in the case of Re X [2024] EWHC 538 (Fam) and have shown an appetite to adjourn proceedings for the purpose of NCDR even where both parties aren’t in agreement.

The issue of mandatory mediation is complex when it comes to family law cases, especially when considering power imbalances and the like. However, in my experience, the benefits of mediation, in terms of empowering couples to step into each other’s shoes as a tool for resolution, are not widely understood by clients and lawyers alike. That is its USP. So, in a world where we are becoming less and less able to empathise with another’s point of view (especially when we don’t agree with it), the need for mediation has never been stronger. Unlike other litigation disputes the relationship between the parties doesn’t end with the final judgment, as those relationships will potentially last a lifetime where children are involved. Successful mediation enhances relationships whereas traditional forms of litigation (and even some types of NCDR) can drive that wedge deeper between them. Therefore, a truly client focused approach should, in my view, position mediation as the first choice for NCDR.

This article was first published in the ThoughtLeaders4 High Net Worth Magazine

[1] CEDR 2023 Mediation Audit