Court v Mediation; my verdict.

I recently had the experience of attending court to give evidence and being subjected to cross-examination. This was probably one of the most daunting experiences of my professional life. Whilst I have plenty of experience of litigation from a solicitors perspective this was an entirely different experience and not one that I ever want to have to repeat. However, trying to take a positive from every experience in life, I was determined to use this as an opportunity for learning and I could not help myself comparing the legal process to my experience of workplace mediation in practice.

The trials of court               

• The process is quite theatrical and is all about presentation.
• The room set up and pomp and ceremony creates an imposing  environment. There is no attempt to put the parties at ease.
• There was little emotion on show and plenty of self-control being displayed.
• The questions in cross-examination are designed to catch you out, to humiliate and undermine so that the other sides performance comes across as better.
• There was a huge number of documents, the barristers and instructing solicitors in addition to the judge each had something like 7 lever arch files full of documents. (A thousand trees comes to mind.)
• All were pouring over the minutiae  of the written words and proposing interpretations that were never intended or considered at the time. The process is all about words and their interpretation with no real account of any communication beyond the words.
• I felt as though the process was going on around me. I was an observer rather than a participant, with no control and very little involvement.
• It was tedious, tortuous and lengthy; the trial was scheduled to take 4 days and we are unlikely to know the outcome for some months.
• There was no direct communication between the parties. The set up is such that the parties are largely keep apart so that there is not even any need for eye contact let alone direct dialogue.
• The judge is a very distant character who does not really engage with either party. He (or she) may ask the odd question of each but no more than that.

The Mediation process

• Prior to a mediation I will already have spent some time talking to both the parties and will have commenced the process of establishing  trust and building rapport with them both.
• I will take great care to set up the room in such a way as to make all comfortable and at ease. I will also spend some time making sure the parties are settled and ready to proceed before commencing.
• A mediator speaks directly to both parties and gives equal consideration to both by listening and communicating directly with them.
• Mediation takes account of much more than the words. In the workplace mediations that I undertake written documents are very rarely referred to let alone poured over. The process is as much about the words spoken as it is about the words that are not spoken and how things are communicated, including non-verbally.
• Emotions are a very important element that should not be underplayed. I don’t think I would go so far as to say that I would encourage open displays of emotion but it is important that parties feel able to show their emotions and I am not afraid to let it flow. The process is designed to provide a safe environment in which parties can be entirely open and honest and it is important that each party understands the impact on the other. Also in this way you get to the real issues which lay beneath the words.
• Any questioning of a party is designed to promote learning; a greater understanding of their own position as well of that of the other party. It may be challenging but it would never be judgemental or undermining.
• It may take a little while to achieve, but the process encourages the parties to communicate directly with each other and to look each other in the whites of their eyes.
• The parties are in absolute control of the outcome and resolutions; the mediators role is to facilitate this but the power is in the parties hands.
• A mediation will usually be completed within one day.

Conclusions

I am not sure that you could say that either process really gets to the truth  of matters, as each persons version of the truth is inevitably different. However, mediation will attempt to achieve an understanding between the parties and whatever the outcome it is a learning experience; this is not part of the legal process.

Being a party in either process is not an entirely pleasant experience. Mediation is not an easy option and I know from experience that parties are often nervous and anxious. That said, given the choice, I would opt for mediation every time.

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