Articles

The planned route to settling disputes and conflicts

Preamble
With regard to planned routes to one solution or another, we often hear expressions like 'a road map for peace', etc., and it is easy to start believing that such expressions make some sense. We know that the destination for that particular journey is peace. We also know that an adequate road map shows a known starting point for the planned journey and also one or more possible routes from the starting point to the chosen destination.

With some degree of licence, we can believe that peace is a clear concept, but in reality it is not quite so easy to define peace in the context of some future time. Moreover, it is not so easy to define peace for some indefinite duration which begins at a point in time following the end of the planned journey. Nevertheless, when we speak of peace in general terms, we probably mean a state of affairs where we can classify undesirable things as an act of crime as opposed to an act of war.

When we speak of road maps, at the most basic level, we have in mind some very specific information which someone has researched or experienced and then set down in a form whereby the information can be read and understood by someone else, namely: set down in a form for the benefit of someone who has not done the same research or who has not experienced the same thing and, of course, for someone who wants to reach the specified destination.

Accordingly, I believe that the expression 'a road map for peace' is not a good description for a particular journey which has not been travelled previously in any definitive sense; especially so when the destination is, at best, only a vague generalization concerning the definition of something which is not war. Added to the problem is the simple fact that in the context of arriving at a state of peace, it is very difficult to define the precise starting point for the specified journey; save to say that where the parties are now is quite unsatisfactory and things need to change.

I have chosen the above preamble as a means of casting some doubt upon the validity of coined expressions which simply have the benefit of sounding good in situations where it is very difficult to say anything really useful beyond the natural expressions of hopes and desires. Now I want to present an alternative to the above reasoning. I want show that it is quite possible to lay down an effective road map for virtually any destination, providing there is a superior force around. That is, the effective power of someone to command that someone else shall travel the specified journey on the road map or else suffer the consequences of failure.

For that purpose, I shall choose the civilized State. In a civilized State, the concept of the legal system and the courts is based upon the superiority of the State, which superiority is able to force people to follow a road map, namely: the procedure of the courts for dealing with matters finally. The consequences for failing to follow the procedure is clearly defined: there are sanctions; at the very least, in civil matters there is the sanction of a court refusing to deal with a case which someone wants to bring to court; at a more serious level of a failure there could be criminal sanctions. Of course, within the jurisdiction of a civilized State, the road map is said to be in the interests of the people collectively.

However, on the world stage, the concept of representing the people is not realistic, namely: because no one body can claim effectively to act in the interests of all people of the world collectively; i.e., there is no superior force which has sufficient power to lay down a road map which all others must follow. At least, all contenders in recent history for such a power have, in the end, demonstrated a lack of sufficient superiority. Thus, in all logic the whole concept of 'a road map for peace' must be doubted.

Private dispute resolution
Now, what has the above got to do with settling civil disputes and conflicts in more general day to day situations?

It seems to me that there is a growing tendency for some people to believe that there is a way forward for settling disputes and conflicts outside litigation which can be mapped out and taught. Moreover, that there are some good people who have the definitive road map in their pocket and they, therefore, have the ability to guide others on their journey to the specified destination. Naturally, from the above preamble, you will know that I have my doubts about such beliefs because it also seems to me that the people who talk about road maps to settle disputes and conflicts must, for efficacy of that notion, identify that there is a superior force capable of imposing a road map on the parties [e.g., as in litigation]. Accordingly, it seems to me that in the absence of the superior force it must be accepted that there is no such thing as the definitive road map in the world of disputes and conflicts.

Arbitration
In the field of arbitration, all those involved accept that there is the intention of an end result to the procedure, namely: a final award, or a prior agreement by the parties. However, there is unlikely to be any form of definitive road map for the whole journey from the beginning of the procedure to the end of the procedure. Even though the arbitrator has the ultimate superior power to decide procedure, that power can be negated by the parties jointly at any time. Thus, the arbitrator cannot start off with the notion of a definitive road map no matter how many times that arbitrator may have travelled a similar journey.

When reflecting upon my own experience, I would be inclined to say that if all those who have been involved in an arbitration looked back over the journey undertaken before the award, they would conclude that they were more like explorers in the jungle than followers of a road map. However, perhaps fortunately, such is the case that those involved rarely look back once the award is published; they are just glad to be moving on with their lives after experiencing what it likely to have been a debilitating battle.

With regard to the actual destination itself, until it is known by the arbitrator's final award, the destination will always be the subject of contention in all things undecided; save for the obvious knowledge that the award, for practical purposes, will end the dispute or conflict. Thus, there is no clearly defined road map for the journey and, of course, the real outcome of the journey will only be revealed after those involved have arrived at the destination.

Mediation
In the field of mediation and other non-binding procedures, by the very nature of these procedures, if they are undertaken with integrity there will neither be a defined journey nor any certainty about the outcome, hence any preconceived concepts of a road map is potentially damaging to the whole process.

One hears stories of some mediators who seem to be acting more like programmed robots than human beings. I recently heard one comment from a party to a court linked mediation who said that it would have been great to have captured the mediator on his mobile phone. He described the picture of dealing with a mediator who was carefully following a clearly prescribed journey and getting nowhere.

In the context of mediations associated with court action, I suppose that the notion of the superior force is potentially present and that some participants feel obliged to demonstrate that they have trod a path which is acceptable to the court before getting down to the real business of litigation. Further, in this environment of prescribed mediation, there is also the concept that some participants may actually like the notion of a proper road map because they may use the mediation procedure itself as the evidence that there has been a bona fides process for reaching an agreement which had, for practical purposes, already been reached prior to the mediation. In this latter context, much litigation is about the desire of the parties' representatives to demonstrate their determination to look after their own side's full interests by fighting the battle with apparent grim determination, but always with an eye on a safer exit route [Have we not all witnessed this with some of the salaried employees of governing bodies and large businesses?]. Furthermore, for those who are sometimes inclined to hail mediation, in the context of litigation, as achieving a settlement in many cases, we must remind ourselves that historically most litigation cases settled prior to a hearing. The usual observation associated with those past settlements was simply that the settlement was based upon the advice of Counsel, who had carefully reviewed all the available evidence. Everyone likes a peg to hang their coat on and the word 'mediation' is now beginning to sounds like the good peg.

Where there is litigation in the background, there is a growing determination by the UK Government to interfere with the extremely valuable area of non-binding private dispute and conflict resolution procedures. Although one has to admit that this interference has the nature of a variable and shifting tendency, i.e., with the decisions of the courts expanding the ongoing debate as the judges strive to strike the right balance, the general direction is clear. In this context, I have in mind the prescriptions, the incentives and the sanctions that may be used if parties do not willingly explore mediation at some stage when they seek to proceed with litigation. This developing process is now highlighted by Article 5 of the EU Directive [2008/52/EC] on mediation in civil and commercial matters, which states that this Directive is without prejudice to national legislation making the use of mediation compulsory or subject to incentives or sanctions ... provided that such legislation does not prevent the parties from exercising their right of access to the judicial system. In such an environment of thinking, it seems inevitable that people will want to hold up an acceptable road map and say, 'You can see clearly that we have travelled the chosen route to this point so may we now proceed without any sanctions being imposed...'

Conclusion
As a strong supporter of arbitration and the non-binding settlement procedures in the difficult work of conflicts and disputes, I am growing increasingly convinced in my belief that we shall soon have to jettison the term 'mediation' from the range of procedures which relate to voluntary agreements. We shall probably have to accept that the term 'mediation' has been hijacked by the court procedures and also accept that the work of a mediator will be just one of the preliminary steps in the litigation process. A preliminary step which is regulated and controlled as seen fit by the courts, namely: regulated and controlled in the context of what incentives and sanctions are to be applied; regulated and controlled as to what may or may not be disclosed when costs are argued about; regulated and controlled in order that there is a measured flow of work passing in front of the judges in order to ensure a proper balance in the management of the court structure.

Maybe it will be a good idea for the world outside litigation procedures to hold on tight to the term 'arbitration' and to the general expression 'non-binding dispute procedures'; and to stress the entirely voluntary basis which has been the driving force behind these important facilities for hundreds of years. Perhaps we should also clearly distance ourselves from the regulation and control by all superior forces, save only the power of the parties to agree whatever they wish within the realistic framework of any safeguards as are necessary in the public interests.

In the context of the notion of a planned route to settling disputes and conflicts, the main difference between arbitration and the non-binding procedures is that in arbitration, once the journey has been started, there is no escape save by an agreement or an award. However, for all these procedures the success of the journey will be marked by flexibility in the steps undertaken by all those involved. Those arbitrators, mediators, etc., who believe that they have managed to keep any of these procedures to a predetermined plan have surely denied themselves and the parties from sharing in the full benefits of these voluntary procedures. I have no doubt in my mind that any experienced independent person who has travelled the journey of dispute and conflict resolution many times will know by experience that there is no such thing as a road map for the task being undertaken.

END

Francis Miller

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