BUSINESS BRIEFING
When two parties are locked in dispute, there can often seem to be no way forward. Inviting an independent third party to mediate may be just the solution
Let’s talk… John Sturrock D
isputes and differences arise in all walks of life and in all parts of the country. How we deal with
them can determine our economic and personal futures.
A long-running unresolved conflict with a neighbour, supplier, contractor, employee or business partner can be the source of anxiety, a serious disruption to day-to-day working and costly in terms of time and money. We will always have disputes, of course. Human nature being what it is, differences of view are inevitable. It’s how we deal with them that matters.
Sometimes, we can default into adversarial mode, with polarising of views and growing antagonism which eats away at business and personal relationships. Our language may become more aggressive and fear of losing face can mean that we are unable to make any concessions, including acknowledging that we might even be wrong. We make assumptions about other people and what they have done so that, as one writer put it, “it’s not our differences that separate us but our judgments about each other”. Disputes can become deep-seated.
What can be done? Traditionally, people have resorted to legal proceedings or other formal steps to resolve their problems. The difficulty, of course, is that this takes time and can cause a hardening of positions. It can also be expensive. Nowadays, however, many businesses and individuals are using another way – mediation – to achieve speedy and cost-effective resolution of their disputes.
24
Use of mediation has grown steadily in Scotland in recent years, from its starting point in family disputes into community and neighbourhood difficulties and now in business and organisations too. Mediation is a process which involves an independent, trained third party, who acts as a facilitator of discussions between parties who have a dispute or problem to resolve (with their lawyers, agents or other advisers, if appropriate). Unlike an arbitrator or judge, a mediator does not form a view about the rights and wrongs and does not issue any judgment. He or she seeks to give the parties the opportunity to set out what the real issues are, what is concerning them, and what they need to say. This is done privately and the mediator will often meet separately with people as well as bringing them together if that is useful. The key is to help each side to understand the other and where each is coming from and then to identify and assess the options for going forward constructively. The final decision about what the outcome should be rests with those whose problem it is. The goal is to find something which meets the common interests of all those involved.
Mediation is remarkably effective.
Usually, the process takes about a day, even in complicated situations. That time may be shorter if the matter is relatively simple, or longer if more time is needed for what may be long- running and complicated issues. But usually, people are able to move on briskly from looking to find fault based on the past to addressing the present and the future. It’s not easy, of course. A long-standing and sensitive conflict can be hard to break and it may be necessary to face up to some painful realities. However, the fact that mediation is confidential and not binding on anyone unless and until an agreement is reached
gives scope to explore what really matters and get to the core issues.
Mediation has been used recently in Scotland to help farming families to deal with difficult issues of succession and inter- generational transition and to address division of land where relationships have broken down.
It has helped settle claims for unpaid sums when an agricultural agent became insolvent, and resolve boundary disputes over adjoining pieces of land.
When crops were allegedly damaged as a result of spraying in adjacent fields, mediation helped to find a way through difficult personal and scientific issues, just as it did when serious damage occurred in an offshore fish farm.
Disputes or differences arising in farming tenancies, such as rent reviews, are ideal for this sort of problem-solving, for both tenant and landlord, as are land management and estate ownership issues in general. The Scottish Government has recently published a guide to the use of mediation in the planning system and is now pursuing case studies in a pilot project. Some are likely to involve issues arising in rural settings.
Projects involving renewable energy, local communities, environmental issues and the competing interests of the natural countryside and a low-carbon economy are ideal examples of where a mediator can help those concerned to discuss how to go forward.
Mediation does not offer a utopian panacea. But it does offer a relatively quick and relatively inexpensive way to address difficult situations, ensure greater understanding, narrow the issues in contention and offer a constructive approach to finding solutions in difficult situations.
LB
John Sturrock QC is chief executive of leading mediation service, Core Solutions Group. For further information or for a without- commitment discussion, contact 0131 221 2520 or see
www.core-solutions.com
LANDBUSINESS ISSUE 36 JUNE-JULY 2010
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56