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The Core Challenge

Published: 21 May 2021
Time to read: 6 mins

On 22 January 2021, Core celebrated the 20th anniversary of their launch. To mark the occasion and to encourage the next generation, they invited young professionals who are really interested in mediation to take part in The Core Challenge. Below is Private Client Associate, Sarah-Jane Macdonald’s winning entry.  

What One Change Would Make a Real Difference and Increase the Use of Mediation?

When I read this question, I was instantly drawn to reply: “the mind-set of solicitors”. When someone is in the nitty-gritty depths of a dispute they ultimately rely on their legal adviser to guide them. If their solicitor does not champion mediation as a means of resolving a dispute, the client, likewise, will be wary about its effectiveness.

Where Is The Issue?

I recently spoke at a discussion group with peers from across Scotland when the point was raised that many solicitors believe we ought to have the soft skills to assist our clients in reaching an agreement, and the question was raised: is resorting to mediation a failure on our part as solicitors? This idea that bringing in external mediators implies some incompetence or “failure” is a fundamental issue that will continue to limit the use of mediation until that stigma can be overcome. This “fear of failure” can result in a reluctance to go beyond the comfort zone, and simply rely on old options. Whether this fear is from “the unknown” or it has stemmed from negativity from peers, or unsupportive colleagues, it is clear that these perceptions must change from seeing mediation as a “failure” to a “success”.

How Might We Overcome It?

1) Remove the Unknown – by educating solicitors on mediation and the process to “demystify” it;

2) Highlight the Success – by demonstrating the solicitors’ key skills and expertise that can be invaluable during the process to dispel misconceptions of their failure;

3) Highlight the Failure – by explaining that the feared worst-case scenario, is, essentially, no different to the pre-mediation position; and

4) Focus on the Goal – by showing solicitors how mediation is an extension of the negotiations to reach the agreement they have already been striving for.

Whilst there exists a great deal of information and training to tackle the “unknown” factor, I haven’t seen many articles or seminars featuring the solicitor’s perspective to emphasise our role and what “success” looks like for us.

What Does Our Role Look Like?

Our clients come to us for guidance and, whilst we strive to help them reach an agreement, negotiations can become protracted and perseverance can result in delays which compound the already tenuous situations in which clients find themselves.

Court may feel like the only option, but the costs can quickly rocket and it puts the decision firmly in the hands of a third party.

Mediation, however, provides us with a framework to bring the parties together and discuss the issues, and essentially extend the negotiations we were in, so our role remains just as key.

Although mediators lead that process (and expertly so), solicitors continue to be very much involved in handling their respective clients, advising on the legal, tax and practical implications, and using those ever-relevant soft skills to get to that final agreement.

Having been through the mediation process, I can firmly attest to the fact there is still a lot of work, and soft skills, required in supporting and advising our clients through the process. It is not a case of handing the reins over and stepping back – quite the contrary!

A Success Story

I was involved in the mediation of a farming estate being passed down to the next generation in terms of a Will after over 15 years of negotiations and decisions from a Sheriff and Sheriff Principal. By the time I got involved, the next generation were aging and, as you can imagine, exhausted from the legal process.

Going back to court and putting this complex estate into the hands of judges with no real appreciation of the land or the family’s concerns would not have been a “win” for anyone.

We agreed to mediate, and actually reaching the mediation and getting all parties in one room – for the first time in a decade – was itself a huge success.

The mediation was split over two (rather fraught!) days and we barely had a minute to breathe. With each new proposal came new legal or tax intricacies, counter proposals and ideas. The days were spent thinking on our feet whilst juggling between complex problem solving, client management and contingency planning. At the end of the first day, when several parties felt there was little hope of success and no point returning, each of the solicitors were instrumental in persuading their clients to stick with it.

Several hours into day two, when it was looking like everything would fall apart, a “round table” of the solicitors and mediators saw us frantically collaborating on the final sticking points, before each advising our clients and getting over that proverbial line. That evening, the family were sitting around the table, enjoying fish suppers and even joking with the mediators, whilst the solicitors were ushered away in another room furiously typing up the Mediation Agreement.

Seeing what mediation can achieve, the utter relief for the clients, and finally signing an Agreement they had been desperate to reach for so many years, was, undoubtedly, a success.

“Calling in the cavalry” was never seen as a “failure”. Our clients (and colleagues) appreciated the value that mediation added, which, together with our skills and expertise allowed us to achieve that “win”. It was very much a collaborative process and both the mediators and solicitors were an absolute necessity to reach that agreement. Had the solicitors not championed mediation, however, we may never have got everyone in that room to have that opportunity.

So What Makes the Difference?

If mind-sets can change and shed this notion of “failure”, I believe we would see an increase in mediation. That said, it can take a great deal of courage to advocate for mediation given the pressures we are often under from clients, peers and the business needs around us. I just hope that this gives my peers an insight into one solicitor’s “success” and perhaps the confidence to step out their comfort zone and try mediation.

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