Navigating around the psychological barrier to mediation
It was good to see The Times running a piece last week by the Tutu Foundation UK’s head of mediation and training, Paul Randolph, outlining the case for compulsory mediation within the civil justice system.
He discussed the recent interim report on ADR by the Working Group of the Civil Justice Council. The 98 page document, published last month, has been described in the Law Society Gazette as bringing compulsory mediation a step closer towards the civil justice system, whilst stopping short of making ADR a pre-condition to issuing proceedings.
It acknowledges what mediators like Paul Randolph have known to be true for many years – that despite decades of efforts by the courts, judges, mediators and government, there remains the fundamental problem of the failure, so far, to make ADR familiar to the public or considered culturally normal.
On the face of it this is baffling. Why in cases of conflict do people ignore the option of mediation in favour of outrageously expensive and often distressing litigation?
As Randolph points out the court process is utterly alien to most people. It is uneasily formal, with rows of lawyers seated in front of an elevated judge, mostly in 17th century wigs and gowns, whilst the litigants themselves are relegated to the back benches. Worse still, the court language is complex and often difficult to understand for those without legal training. Randoph’s theory is that human beings are psychologically pre-programmned to win. They don’t like compromise. They want to fight and emerge victorious. He cites an article he published in the New Law Journal in April 2010 in which he pointed out that the human psyche is not naturally inclined to settle scores (however minor) through reasoned discussion.
“We have an innate aggression, which, when we are in dispute, transforms itself from a mere instinct to “survive” into an acute need to crush the opposition. We no longer act rationally or think commercially; instead we are driven by an emotional craving to triumph.”
Now he says the time has come for stark choices. He argues “To continue the same measures of encouragement as have been tried, and failed, over the past 25 years, and expect a different outcome, is surely insane? How many more times will we hear stories of parties squandering obscene sums of money on legal fees, and losing vast amounts of precious time and energy blighting their daily lives in litigating seemingly petty squabbles? How often must we hear Judges declare in exasperation: “this case should have been mediated” – before we say ‘enough is enough’?
“Let us abandon the description ‘compulsory mediation’ and substitute in its place the term ‘automatic referral’. Compulsion is a toxic concept. Nobody, least of all lawyers, appreciate being told what to do - and least of all by Government. We may also need to revisit the word ‘mediation’ which has acquired an unfortunate connotation of ‘splitting the difference down the middle’ – in other words: compromising. This is unattractive to most litigants.
The Interim Report provides a great opportunity for a constructive transformation of the Dispute Resolution landscape. The Government would do well to grasp the nettle and take the bull by the horns (or any other suitable metaphor) to effect this beneficial and necessary change. The CJC Working Group got it exactly right when they noted (at paragraph 9.18(a)) a potential advantage of pre?action compulsion:
“It has to be worthwhile to impose a simple, universal requirement on the parties to do something which will be of benefit in all but a small minority of cases.”
This is completely in keeping with the Tutu Foundation UK ethos and the theme will be continued next April when - building on the success of its first two annual ‘Desmond Tutu Peace Summits,’ - Regent’s University London, in partnership with the Tutu Foundation UK, will bring together a host of experts who have endured some of the most extreme conflicts of the modern era.
It will be staged under the title ‘Mediating the impossible’ at the
university on Friday 20th April 2018. Details of keynote speakers and more information will follow soon.
Paul Randolph, who is also lecturer in psychology at Regent’s and author of The Psychology of Conflict points out that “Whether the subject is Brexit, Trump, terrorism, military clashes, global politics, sexual abuse, policing, #FakeNews, workplace disputes or cyberbullying, one thing has become starkly clear - our world is becoming an increasingly divided place. Self-esteem and how we view ourselves is one of the strongest motivating factors in generating fear and conflict,” he explains.
“There are always two sides who believe that their perception is the only truth, and that their opponents are idiots or maniacs.
“When we talk about our feelings being ‘hurt,’ we acknowledge that any form of criticism or rejection can affect our self-esteem and may be felt as physical pain. This is why we find it so difficult to admit fault or say ‘sorry.’
“Mediation is becoming increasingly recognised as an important tool for resolving conflicts in peace negotiations across politics, divorce, employment, the commercial sector and even war.”