The very first thing to note is the opinions outlined here should not be interpreted with reference to any particular individual dispute – current or otherwise. I want to look at mediation and the room it accords and recognition if offers to the human dimension often found at the heart of disputes.
It’s always to be found where the disputes are medical and relate to issues around someone’s health and wellbeing.
In keeping with the recognition and incorporation of the human dimension that mediation involves, Mediation Institute of Ireland (MII) asks that nothing in this article be read as a specific observation on any specific case. It’s enough to make the case generally and spare any family the burden of seeing their loved one’s case used – however respectfully – as an instance or example.
The reason why more and more seasoned observers – including judges – are promoting mediation is that it can get started, get going and get to the core issues in a much speedier and less cumbersome fashion than traditional litigation. It’s also notably less expensive but that, in MII’s opinion, should never be the decisive factor.
We prefer to emphasise the different point of departure that gives mediation the momentum and room to – with the engagement and sincerity of the parties in dispute – move towards an agreeable mediated resolution. That point of departure is mediation’s disavowal of the traditional winner-versus-loser adversarial system where one party’s presentation of the circumstances is deemed to have, in some sense, defeated the other’s.
Mediation starts from the premise that the object of the engagement must not be victory over the opponent but actually resolution of the dispute.
This may seem like an abstract distinction, but MII’s experience is it is an essential difference and one that can – and often does – decide whether a dispute is resolved or lingers into rounds of more expensive litigation that, by definition, often makes a resolution more unlikely and difficult.
This is not a criticism of litigation per se; there will be cases where the points of law are so complex and intractable only litigation can drill down towards decision. It is, instead, an acknowledgement that if the starting position of the parties in dispute is one of confrontation then that is usually the spirit in which matters will proceed.
Mediation very deliberately takes a different angle: how do we resolve this dispute? How do we engage the parties in dispute in a way that enables them to set out their grievances and injuries for acknowledgement and address and begin moving them towards resolution? How do we show parties in dispute that it’s possible to engage meaningfully towards resolution without any sacrifice of respective legal rights.
That’s our professional challenge and the unique capacity of mediation – a capacity now acknowledged by experts – lies in that ability to get the wheels turning towards resolution. To engage the parties in dispute, acknowledge their good faith and sense of injury, and then through our professional procedure, lift the dispute up and begin moving it in a non-adversarial fashion towards resolution. That is what mediators do and that is why the practice is increasingly viewed as a first option in every class of disputes.
Mediation is not about replacing anything but complementing our existing suite of dispute resolution mechanisms.
Its growing popularity is directly connected to the incontestable data that shows where resolutions or settlements are arrived at from within – agreed upon by the disputing parties through professional mediation – they are notably less rancorous than where settlements have been imposed on the disputants from without.
It is simply the professional recognition that where people or parties in dispute feel they arrived at the resolution themselves then they are much less likely to feel aggrieved or resentful. Mediation is the procedure that enables that dynamic to replace the dynamic of adversary and winner/loser.
There’s no area where that dynamic can seem more sterile than medical disputes.
I started by saying I’m bound by professional ethics and ordinary sensitivity to abstain from making reference to specific cases, but readers will understand if I gently point out there are areas of dispute where we all – everyone with a stake in these heartfelt matters – have to put aside any questions of institutional or individual self-interest and recognise the urgency that attends some cases.
MII believes that often just agreeing to mediation can, in itself, change the dynamic and signal a real intent to resolve a dispute. Engaging in mediation is the announcement the parties in dispute are in earnest about resolving their dispute. It is, in that sense, a signal of intent.
Mediation Institute of Ireland gently suggests that we owe it to ourselves – and to others recently departed – to start looking at professional mediation as the invaluable and progressive resource it is.
Margaret Considine is president of Mediators’ Institute of Ireland