I recently attended a wonderful summer party. I was talking to a fellow guest, who, when she discovered I was a mediator, shared the difficulties she was having with her family over a disputed will. Her story made me realise what ‘an imprecise mechanism for closure’ the court process is, as Emma Brockes wrote in The Guardian last week.
I don’t mean to say that mediation is a magic wand. Rather, it’s the process of litigation that’s imprecise, a situation that our being human aggravates. See Emma’s full article (scroll to Thursday and her reference to Prince Harry) for more on this.
Back to the party. In a beautiful garden on a warm but dramatic summer’s day, I listened to this lady’s sorry tale of her dispute with her siblings. In my view, she would need a team of people to help her explain her case to the others in her family, so they could see how determined she was, and that right was on her side – as was the law.
Why you shouldn’t try and go it alone
On her own, she would not be able to organise a family meeting with everyone around the table to thrash it out. This would likely end in disaster, aggravating her family and entrenching them in their soured relationship with her.
Lawyers would advise her to take the family to court, where they would all have to endure a lengthy, expensive, heart-rending and imprecise closure – including those on the ‘winning’ side.
I suggested she talk to someone with experience of mediation who could help her plan the first step to resolve the dispute. This would include agreeing with the other family members to appoint a neutral mediator: someone with the expertise and experience to help them resolve their differences and agree a way forward. Then, when they reached an agreement, it should be formally written up to be binding – the point at which they would need the lawyers.
Beware of conflicting interests
However, who should she turn to for help with all this? Some mediators I know would help but also want to conduct the mediation, which confuses their role. Others would be lawyer mediators who would introduce her to their law firms – and the high costs that would ultimately incur.
The best support she could get would be from a mediator who realises that people need help well before the litigation process gets underway. Someone who would advise her on what to do, in the full knowledge that by giving this advice, they can’t be the mediator because of the obvious conflict of interest.
In my case, I’m a director of Moot Hill, a specialist dispute resolution consultancy with no affiliation to any law firm but with many years’ experience of successful mediations. We advise our clients to help them quickly resolve complex commercial or family disputes.
My fellow guest thanked me and said she had a great friend who was a mediator and would seek his advice.
Article by Mark Linnell, Director at Moot Hill Ltd
