Set in an adversarial environment with a clicking court battle time-bomb placed over our heads, my first experience of court referred mediation in Scotland, as a co-mediator, was overwhelmingly real. There is a silver lining though – the one that motivates me to keep at it, work harder and never quit learning from these quirky moments – where the participants expressed gratefulness for being heard and understood. This, in my opinion, accounts for a successful mediation.
Last month, I had the opportunity to visit the local Sheriff Court, a majestic building overlooking the River Clyde, in Glasgow. Interestingly, in Scotland, a court judge is a “Sheriff”. Representing the mediation clinic, based at the University of Strathclyde, we were anticipating that some small claims cases may be referred to mediation. What we weren’t prepared for was a spontaneous mediation session, set up in the courtroom, witnessed by an armed policeman and constantly interrupted by the courtroom officials.
I must express appreciation at how the sheriff dealt with the disputing parties at the beginning, when they rejected his initial suggestion to try mediation. He calmed them down, explained to them the procedural hurdles and timelines of the court, confided in them that he was a subject-matter expert in this case – breach of contract in a construction case – that they were invested heavily into, and highlighted that they were both living on the edge.
“One of you will be disappointed when I pass my judgment today” he said, “or you can settle this matter to your own satisfaction with the help of some qualified mediators in the room”. This time they both consented, presumably wanting to be well-behaved gentlemen.
We entered the mediation session knowing little about the case and being briefed that things heated up the last time these two met in court. “I would have appreciated if he spoke to me earlier, I have nothing to say” said one. “He is going to lie to you, so there is no point in all this now,” said the other. Despite various attempts to dialogue, there was no progress. So, we shifted to private sessions.
That’s when the first whistle went off – the sheriff clerk announced that we had 30 minutes. Stunned by this interjection, we moved on. I almost felt like I was in a student mediation competition where we are granted 60 minutes to showcase our mediation skills, but this was different – this was real.
Due to the unusual time pressures and the intensity of emotions in the room, we ended up engaging in continuous rounds of shuttle negotiation. These private conversations brought out some really interesting angles to the dispute. Firstly, neither hid his feelings about the other. The atmosphere was tense and there were a lot of cultural and communal undercurrents running through this case that surfaced through statements like “I don’t trust him, and just being local doesn’t allow him to be the bully” and “I know his kind of people, he would have never paid me.”
We were making some progress in the sense that the participants were venting out their raw expectations and emotions about the case. One of them even said, “I don’t understand why the sheriff keeps brushing off the fact that the man punched me. It’s important to me and he doesn’t hear me out”. Now, considering it was a small claims court, the sheriff, of course, was within his jurisdictional duties to focus only on the legal matter at hand – the breach of contract – and he respectfully made that point very clear to both disputing parties.
However, from an interesting neurobiological perspective, International Mediators Jeremy Lack and Francois Bogacz apply neurophysiology to ADR, to explain “the difficulty human beings have in being logical and highly emotional (e.g., angry) at the same time”, and I believe that the agitated participants were much more at ease, and began looking at the alternatives logically, once they had expressed their anger and felt like they were being heard.
Then, once again, the second whistle went off – “The sheriff wants to know if you have made progress,” said the court clerk. Every time the whistle went off, the efforts to reduce the tension in this pressure-cooker like situation evaporated. The reminder of the court proceeding as an ‘existing alternative’ waiting for them, pushed them back to their polarized positions. Our biggest challenge was remaining neutral through this period of interruptions and breaks, dictated by the court. There was an interesting moment when we realized that the participants had begun asking us to negotiate on their behalf. As mediators, we had to remind them that we are not negotiating on their behalf, but we could relay an offer if requested – which means that they have to clearly tell us what they want communicated to the other side.
In a few minutes, the third whistle went off and the mediation was interrupted and abruptly put to an end due to “paucity of time”. The sheriff began the court proceedings, after declaring the session as a “failed mediation”. Agreed, they didn’t settle, so calling it an unsuccessful effort at ‘resolution’ would be ideal, rather than labelling it as a “failed mediation”.
For one thing, a significant proportion of mediations that do not settle on the day go on to settle subsequently. And to paraphrase the words Sir Alan Ward, the former chair of the Civil Mediation Council for England & Wales, who adds a twist to the popular English saying of taking a horse to water but not forcing it to drink, “I suppose you can make it run around the litigation course so vigorously, that in time, it may find mediation to be a better option”.
I don’t believe the disputing gentlemen woke up that morning thinking they were going to mediate, but they gave it a shot. They now know mediation exists and where they can avail themselves of these services in the City of Glasgow. This awareness and experience could be key to them giving mediation another shot during the current court proceedings or maybe explore it at some other instance in the future. I believe that as mediators called to serve in pressure-cooker mediation sessions such as this, the best we can do is keep to the basics, allow them a safe space to “let off some steam” and importantly, offer the participants a good first impression of mediation that will stay with them for life.
And, here’s why I believe this mediation experience wasn’t a failure. Following were the last words from either participant to us, as they shook our hands – “Thank you for trying, appreciate it” and “I know you tried your best, cheers!”.
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