I love photography and the ability to capture moments of time. The photographs on my website are almost all courtesy of talented photographer, Rob Friel. For me, they are photographs to stop and make you think. In the social media world that brings Instagram, Flickr, Pinterest and Snapchat, images are becoming an increasingly popular way to journal our daily lives and of course the same photograph will resonate with each of us in different ways.
It is therefore hardly surprising that two parties can interpret the same set of facts in completely different ways. Usually when parties mediate, there are at least some of the facts agreed even it is only the date certain events took place. How those facts are interpreted will depend upon each individual’s experience of them, their intentions and influences at any given time and this can also be at odds with people representing the same interests and side of the dispute. We are all wonderfully unique and it is perhaps therefore hardly surprising that conflict occurs.
Litigation usually increases the tensions between the parties. The communication going to and fro can become heated, entrenched and can reinforce an indignant sense of righteousness in the stance that has been taken. Solicitors, and I should emphasise not all of them, can be guilty of adding fuel to an already stoked fire with aggressively written letters in a menacing and threatening tone. This can aggravate strained personal and corporate relationships further and rarely results in an immediate settlement. This adversarial process leads the parties to focus upon what they have done right and what their opponent has done wrong. The parties posture and position themselves not with a mind to finding a solution but instead for the court battle ahead.
In contrast to litigation, mediation offers the parties the opportunity to reach their own solution. The solution can be on terms the parties agree are important to them and not restricted, like a Judge, by the rules of law. This can be hugely beneficial for a whole host of reasons. In Court, a Judge could make an order for one party to pay the other a sum of money in a set period of time. The impact of those terms may mean bankruptcy or administration, which in fact may lead to the successful party not receiving their money in any event. In mediation, the parties may agree a payment plan staggered over a period of time ensuring that one party gets paid and the other avoids financially losing everything.
To reach such an agreement though, the mediator will often help both parties to consider their claim and how realistic it is. There is no judgment involved in this type of reality testing as the mediator is neutral and these discussions are confidential to each party. It does however often mean exploring the facts from the opponent’s perspective – seeing their point of view; looking at the facts through their lens.
This part of the mediation process can be significant in unlocking a settlement and helping the parties have the best possible chance of a resolution.