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The "buzz" of mediation

14 November 16

Reflections from the Commission: misunderstandings about mediation are hindering its takeup as a way to resolve complaints taken to the SLCC

by David Buchanan-Cook

A week or two back was Mediation Awareness Week.

Mediation is very much a buzz word these days. It is widely discussed as an effective means of resolving disputes in the corporate, construction and community sectors. It avoids costly court actions and the non-direct financial costs of time loss, business disruption, loss of production time and risks to reputation. Everyone has heard of mediation; everyone thinks they know what it means.

In the Scottish legal sector, mediation is also increasingly accepted as an efficient and cost-effective alternative to court action. That extends to the treatment of complaints about solicitors and advocates.

One of the unique attributes of the SLCC’s legislation is the inclusion of mediation within the prescribed complaints-handling process – before a complaint about a lawyer’s inadequate professional services is investigated, mediation will generally be offered. It is not difficult to see why the legislators considered this was, to quote 1066 And All That, “a Good Thing”.

Effective method of resolution

First, it is a quicker way to resolve complaints – where mediation is successful, the complaint can be concluded in as little as three months.

Secondly, it is a cheaper and more efficient way of resolving complaints – not only for the SLCC in terms of resources, but it can also reduce the cost and time lawyers spend in dealing with otherwise lengthy and drawn-out complaints.

Another main benefit is that it allows complainers and lawyers to “clear the air”, reducing any ill will they may feel towards each other. Similarly, mediation reduces the danger of the two sides becoming entrenched. The parties are encouraged to weigh up the strengths and weaknesses of their case which, our experience shows, more often than not results in early resolution and the retention of the client/lawyer relationship.

Most significantly, because mediation allows the parties to have their say, we find this leads to greater satisfaction of their experience of the complaints process. As parties themselves decide the outcome, there is no decision imposed on them.

All of this is reflected in the very positive feedback from our mediations: 88% of those who have experienced SLCC mediation say they would recommend it to others.

How successful is it?

All this theory and process feedback is well enough, but how effective is SLCC mediation in practice? On average, approximately two-thirds of complaints which enter mediation resolve at this stage – we think that is pretty impressive.

However, one of the challenges for the SLCC is to encourage takeup – roughly half of those offered free mediation decline. If the benefits and results are so impressive, why should that be?

Tackling the barriers

We recently commissioned research into why people did not take up the offer of mediation.

The researcher identified a number of themes. Consumers had misgivings over the power of the lawyer in the room; fears of becoming emotional; and reservations based on their own or their lawyer’s prior conduct. On the other side, lawyers tended to decline taking part on grounds of “business utility”.

However, the main misgiving highlighted by both groups was a fundamental misunderstanding of what mediation was, with a wide range of levels of understanding of the process and, in particular, the role of the mediator. We had explained the benefits and the positive outcomes; we had pointed to our very impressive customer feedback; and we always explain in plain English how our process works. So how had this happened?

I think it goes back to buzz words. They can all too easily become such a common term that people forget what they really mean, and continue on the basis of a vague and perhaps only half-understood concept. Or, in our experience, they decline mediation because of preconceived misunderstandings.

We get a buzz when one of our mediations results in a complaint being resolved. The challenge now is to build on the excellent work our staff already do in order to eradicate those misconceptions and encourage better takeup rates. In short, it is to demystify the mediation buzz word.

David Buchanan-Cook is head of oversight at the Scottish Legal Complaints Commission

Have your say


Your comment

Archie Waters

Tuesday December 13, 2016, 13:02

Hello David,

I enjoyed reading your article. As mediator with a background in psychology I always find the issue of people declining, or not engaging with the mediation process, fascinating. In my experience much of the fear of engaging is associated with concern about not being in control of the outcome, which is essentially contrary to the ideals of the process. With some SLCC cases I can imagine that the belief that the lawyer is in a very powerful position will contribute to this.

Can you explain a little more about what was meant in the survey by 'lawyers tended to decline taking part on grounds of “business utility”'?

Many thanks,

Archie.


David Buchanan-Cook

Wednesday December 14, 2016, 10:08

Hello Archie

Many thanks for your comments on my article.

In relation to the point you raise regarding "business utility", basically the researcher found that some firms' reluctance was due to a perception of the otherwise chargeable time which would be involved in taking part in mediation. It wasn't felt that it would be a good use of their time.

More than happy to provide further information if that helps.

David