Who says both sides can’t win a legal dispute?

We’ve all experienced situations where reaching an agreement just seems impossible.

During the course of my legal career, I have been involved in hundreds of complex legal disputes, mostly in the employment sector.

Mediation is a process that could be used more to resolve these disputes, but it remains largely underused in Scotland. One of the main reasons for this is a lack of awareness at the time that it is needed most; people simply don’t know that it’s an option, partly because of the privacy of the process.

Laura McKenna is a trained and experienced mediator

Unlike public court proceedings, mediation, a type of ADR (Alternative Dispute Resolution), is confidential.

Not only does this ensure reputations and sensitive business information are protected, the presence and expertise of a skilled mediator creates a different dynamic which can often result in more open, real and effective conversations, not to mention a faster and more positive outcome.

The fact that the process is voluntary is also very different from being compelled to appear in court. It demonstrates some desire to reach an amicable agreement.

As a trained mediator, I have seen first-hand how mediation can preserve, and sometimes even improve, business relationships between disputing parties.

Say, for instance, an employee, whom we’ll call Linda, has worked for a company for a decade and returns after a year’s maternity leave. She feels very upset that her previous role has altered significantly, with responsibilities given to a new staff member. As a result, she raises a grievance and is considering claims of discrimination and constructive dismissal.

Her employer believes that the restructuring was necessary over the past year and has made attempts to update her about the changes and ensure that her role has remained largely the same. The firm considers Linda a valued employee and wants to avoid bad publicity and the costs of defending an employment tribunal claim.

In these circumstances mediation would be good option. Not only would it protect reputation and privacy and minimise legal fees, it would offer the opportunity to come to a mutual resolution more quickly than the tribunal process.

Whereas a tribunal is limited to legal remedies, mediation can explore alternative and creative solutions that might work, such as an apology, revised role, a plan for future progression, compensation or an agreed exit.

There are, of course, times where mediation might not be the most suitable approach, for example where the dispute involves a novel point of law that requires a definitive ruling from a court, or if there is a power imbalance between the parties, the concern being that the “weaker” party might require protection or be pressured into an unfair settlement. In disputes involving allegations of fraud or other illegal activities, mediation is also inappropriate.

That said, there are many situations in which mediation can make a huge difference. Whereas a court or tribunal process can frequently lead to both parties being disappointed with the outcome, I’ve been involved in mediation processes where people leave smiling, or, very occasionally, hugging one another. Whilst cheery affection might not be the norm, the relief I see on people’s faces at the result of the outcome is obvious.

Mediation can create a situation where parties have been empowered to come up with a solution that suits each of them, leaving both with a feeling of having “won”. Surely that’s something worth exploring?

Laura McKenna is Head of Employment Law, McKee Campbell Morrison Solicitors