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.
Examples of long-term disputes are:
- a substantial construction contract when both parties are aware that conflict situations will inevitably arise from time to time.
- insurance - usually in connection with a large project
- hostage-taking (we will pass on that one . . .)
- situations connected to governmental procedures, particularly local government
- situations where legal process does not provide a satisfactory outcome
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 which 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 immediate mediation. Mediation can provide an agreed way out of immediate problems and at the same time continue for as many days weeks or months as necessary to achieve agreement for the longer term.
We have discussed the advantages of mediation at great length elsewhere, but I suggest that one of the greatest advantages in the context of a long-term project is that mediation is the only way the parties can resolve the dispute and continue other contractual obligations. In other words to get it done, built, launched, or as the case may be.
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.
Almost all UK mediators use what is generally described as “facilitative mediation”. In a word, the mediator enables the parties to settle their dispute without being assertive in any way. However, an ongoing dispute may be best resolved if you instruct your mediator to take a role where he is prepared to put forward ideas rather more strongly than may be required in a dispute which can be resolved for ever after a one-day meeting. You may describe the mediator’s role as a referee – with a handful of yellow cards.
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 or insurer 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. A dispute relating to a large contract therefore inevitably involves multiple parties.
A single, continuing mediation
Another common situation requiring 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.