“It’s not personal, it’s strictly business…”
In life, as in the movies, things are never quite so simple. Especially when family property, trusts or businesses are at stake.
Family relationships provide the backdrop to many civil disputes - over inheritance, jointly owned property, family trusts, or ownership and management of family partnerships and businesses. Whether central or incidental to the dispute, family dynamics can have a profound effect on how it plays out at trial or mediation, even if they have little or no bearing on the strict legal position between the parties.
It follows that, whilst a business-like approach is important for a successful civil mediation, it is a mistake to lose sight of the personal dimension.
Professional detachment can be helpful in keeping parties realistic and focussed. The lawyers know the law, but they also know their clients. They can provide frank (and sometimes unpalatable) advice, uncluttered by personal baggage.
The mediator is fresh to the dispute and can help the parties take stock of what they are hoping to achieve and can realistically expect. Acting as both a sounding board and conduit, he or she can enable the parties to reflect on how the arguments and evidence are likely to come across if the case goes to trial.
The elephant in the room
For the parties, it is altogether more personal, especially where there is an underlying family connection.
Sometimes family dynamics will be in plain view (especially in inheritance disputes and 1975 Act claims, for example) but often a great deal more lies beneath. I have seen many a family property or business dispute where clan loyalties, generational conflicts or sibling rivalries –ostensibly irrelevant to the legal issues – underpin and drive the parties’ approaches.
Although not strictly legal, these drivers are no less important to the people concerned, and thus to the prospect of settlement. Tempting though it may be to discount these on the basis that “the judge won’t be interested”, it is unrealistic and usually counterproductive to try to ignore the ‘elephant in the room’.
It is only by understanding these dynamics that you can see the dispute in context, get to the heart of it, and move the parties towards a resolution.
Forewarned is forearmed
The mediator will usually get a sense of these things from initial discussions, position papers and the mediation bundle before the day of mediation, but it is helpful if the lawyers can flag anything which might otherwise be overlooked. Forewarned is forearmed.
There may be specific issues, or ‘red lines’, which are likely to present a hurdle to settlement and will need to be tackled at some point (obliquely or head-on), but more subtle drivers may be equally important.
Family history, relationships or grievances may affect the parties’ outlook, demeanour and conduct on the mediation day. These factors may also affect a party’s ability to truly ‘hear’ their opponent’s position, their willingness to shift their own position, and their capacity to make constructive proposals which may lead to a resolution.
Tailoring the process
This is where the flexibility, humanity and privacy of the mediation process can really add value – a world away from the cut and thrust of litigation. There may be a discussion with the lawyers about the pros and cons of an opening plenary session (and who will speak). The mediator will also need to judge how and when to tackle particular issues or concerns, explore whether there are creative solutions which can accommodate family issues, and consider whether there are extraneous problems which should be acknowledged but cannot be resolved as part of the process.
More self-assured parties may want to get things off their chest in a joint (plenary) session. This can be helpful but care is needed, especially in a family situation: emotions run high; things that are said cannot later be unsaid; and mediation is not the place to settle wider family scores.
Someone who is less forthright may have equally strong views but may struggle (or be unwilling) to express them, especially directly to their opponent. They may find it difficult even to be in the same room. Unless this is recognised and accommodated, they are unlikely to properly engage with the process.
I would always encourage parties to participate in a plenary session if they feel able, with lawyers speaking for their client if preferred, but it is perfectly possible (and right) to dispense with plenary sessions where appropriate.
Whether or not there is a plenary session, the mediator’s work in private sessions and shuttle diplomacy can ensure that all parties are heard, and their positions are explored and communicated.
Mediation: a step in the right direction
Whatever the legal issues at stake and the wider family dynamics, mediation can provide a genuinely neutral setting in in which to convene, be heard, and build a pragmatic solution to a civil dispute.
The outcome may not heal all wounds but, by bringing parties together to resolve a dispute which would otherwise end in court (and doing so in a way that acknowledges and respects family bonds and differences), I would like to think mediation has a part to play in the healing process.
My previous articles on mediating civil and commercial disputes can be found here.
Further information on my background and experience can be found here.
If you would like to discuss how I may assist by mediating a civil or commercial dispute, please email or call.
This article is for general guidance only, it must not be relied on as legal or other professional advice. Anyone engaged in a civil dispute should obtain their own legal and other advice specific to their circumstances and the applicable law at the relevant time.
© Duncan Crine Mediation Limited 16.09.2022
 For clarity, this article is not about what is commonly known as “family mediation”, ie the mediation of matters which would otherwise be handled by the family courts (custody, maintenance, division of assets etc on divorce or the break-up of a civil partnership). There are some excellent specialist family mediators who can help with those matters.  Inheritance (Provision for Family and Dependants) Act 1975