Mediation: keeping the buzz, losing the myths

Better understanding can unlock real potential, argues David Buchanan-cook

Mediation is very much a buzzword, widely discussed as an effective means of resolving disputes in the corporate, construction and community sectors. It avoids costly court actions and non-direct financial costs of time, business disruption and risk to reputation. Everyone has heard of mediation and 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 lawyers – solicitors and advocates.

A unique attribute of the Scottish Legal Complaints Commission’s (SLCC) 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 usually be offered.

Firstly, it is a quicker way to resolve complaints – the complaint can be concluded in as little as three months. Secondly, it is a cheaper, more efficient way of resolving complaints. Not only for the SLCC in terms of resources, it can also reduce the cost and time lawyers spend in dealing with otherwise lengthy and unnecessarily drawn-out complaints.

Another main benefit of mediation is that it allows complainers and lawyers to “clear the air” and reduces any ill will they may feel towards each other. It allows their “voice to be heard”, addressing the underlying emotional issues which often fuel complaints.

Similarly, it reduces the danger of the parties to the complaint becoming entrenched. With the focus on resolution, 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 of mediation, there is no decision imposed on them. There is no winner, no loser.

All of this is reflected in feedback; 88 per cent of those who have experienced SLCC mediation say that they would recommend it to others.

Theory and process feedback is all well and good, but how effective is SLCC mediation in practice? On average, approximately two thirds of complaints which enter mediation resolve at this stage – pretty impressive. However, roughly half of those offered free mediation decline that offer. If the benefits and results are so impressive, why?

Recent SLCC research identified a number of themes. The main misgiving highlighted by both groups was a fundamental misunderstanding of what mediation was. There was a wide range of levels of understanding of the process and, in particular, the role of the mediator. People decline mediation because of preconceived misconceptions.

We get a buzz when one of our mediations results in a complaint being resolved. The challenge for us now is to eradicate those misconceptions and encourage better take-up rates, to demystify the “mediation” buzz word. David Buchanan-cook is Head of Oversight and Communications, Scottish Legal Complaints Commission