“Life is a lottery and a lot of people lose but the winners, the grinners with money colour eyes eat all the nuggets and order extra fries” - Paul Simon, The Werewolf
Lawyers who think their clients have ticked the ADR process box by saying their clients have tried ADR in their own negotiations without a mediator just don’t get it.
Unless you are in the arms business or a litigation lawyer being paid by a client on the hours you spend, conflict is as unprofitable as it is woeful, and it costs us all dearly. So how do you avoid it? In short, it pays to invest in mediation and other alternative dispute resolution processes, so life becomes that much less of a lottery.
Litigation exists in order to provide access to justice. Justice in our jurisdiction is traditionally somewhere on the spectrum between wholly inadequate at one end and frighteningly zero tolerance at the other. So how badly do you need it? Most people don’t; they can resolve disputes by discussion.
Recent efforts to deter parties from going to court have prompted an increase in court fees. In an effort to counter-balance this, new proposals for cases up to £25,000 will see parties able to get legal advice direct from the court.
Lawyers are still the go-to profession to establish legal rights. The side effect of that is they have become the gatekeepers of dispute resolution. But once you know your legal rights, arguably their job is done. If they can’t add value by being experts at all stages of the dispute resolution processes, they can’t offer their clients a clear time and cost benefit alternative. In such a situation, the client might be better approaching a mediator directly.
Understanding alternative dispute resolutions processes has the potential to save clients billions of pounds. If you can get a deal between yourselves, fine, but if you fail, don’t make the mistake of thinking that, because you’ve failed in a negotiation, mediation is not for you. Instead, make sure you speak to a lawyer who has actually followed a mediator at work and ask for his or her view of what difference they might make. What they will tell you is that there was an impasse and so they couldn’t talk any more, but the mediator, who is trained to overcome log-jams, enables the possibility of satisfactory resolution by giving all parties concerned the ability to consider the problem from a completely different angle.