How can mediation become long term?
There is a general understanding that a mediation involves a single day get-together. However, there are circumstances when it is in the nature of the dispute that it cannot be settled in the course of a single meeting – or even as a rather more prolonged process via online mediation.
The example of long-term mediation most usually given is that of a substantial construction contract when both parties are aware that conflict situations will inevitably arise from time to time.
A legal contract can set out agreed terms in as many or as few words as the lawyers have provided but it is the law of unintended consequences that hits every long-term contract.
More often than not, a long term contract is also a high value contract. The problem that causes a delay in one part will have a knock-on effect to the entire contract.
It is therefore critical to all the parties to a dispute that there is a procedure set up whereby every dispute can be resolved as fast as possible.
For this too, the solicitors will often have set up dispute resolution procedures, sometimes down to the smallest detail. But when the unknown events ultimately occur it is often counter-productive to try to fit resolution into a pre-agreed format. However, that is what most disputants try to do, simply to comply with the contract terms.
The only way out of this dilemma is for the disputants (who may number more than two) to agree to scrap or change the contract version of dispute resolution and resort to immediate mediation.
For that, you should find a mediator who is able to both look down on the forest from far above and to assess the detail on the ground, tree by tree. From that point a mediator’s skills and understanding are no different from those he or she will apply to any other mediation.
In the circumstances described, it may be appropriate to instruct your mediator to take a role nearer to that of a referee than a judge.
Difficulties in finalising an agreement
In normal circumstances money is likely to be one of the top items on the agenda.
However, in a repeated mediation process it is unlikely that either side will want to concede a specific sum until they know what the final cost will be and have had time to decide the precise extent of their loss or liability. Use of a memorandum of understanding is therefore likely to be couched in terms that set up the methodology of calculation rather than the precise sum.
Another problem in trying to agree a final solution is the question of liability. A developer or contractor might shoot from the hip at the architect or engineer, but frequently, things have gone wrong as a result of cumulative small difficulties rather than a blatant error. It may therefore be necessary to bring in several parties to the mediation in order to enable each to set out his case.
A full discussion before the mediator, if recorded, will provide a useful historic basis for a more comprehensive mediation, either continuing, or at a future date. Both the original parties and any others added will be under an oath of confidentiality, but that will not prevent the parties’ own private notes from providing some of the information necessary to litigate if that seems to be the final solution.
A single, continuing mediation
The most obvious example of a continuing mediation is for the release of hostages. That is not an area we shall cover in this article.
Another common situation that requires continuing mediation is when one or more of the parties is unable to attend, or apply himself or herself continuously. The reason for long interruptions could be absolutely anything. Your mediator should be perfectly happy to extend the mediation time in whatever way you require to cover either single or repeated interruptions.
A commercial mediation with a long-term timescale may be required when the subject matter is a continuing event or when one or both parties are subject to constraints that require to be satisfied or removed before the mediation can continue.