Perhaps we can agree on this much: conflict is intrinsic to the human condition. We are desiring creatures. Our needs and wants rub up against those of others. Add in an event of intensification: a road accident, a perceived act of negligence, breach of commitment or betrayal of trust. Then there arises anger and its close relative, blame.
Many such situations can be framed in legal terms. We have codes to regulate how people ought to behave. A breach gives rise to the possibility of redress. Often, however, we may observe what looks like a complex legal dispute, but that is not at the heart of the matter.
As a lawyer I worked for months on the blowout of a large and successful business partnership that engaged several large law firms, and various court proceedings. Yet it was never clear why the parties had fallen out. I heard it suggested that the root of the trouble was the slighting by one partner of another’s wife. There is also the phenomenon of ‘grief to grievance’. People in heightened emotional states are more prone to disagreement and finding fault.
Because we are generally disabled by our conflicts, it can suit us to delegate their resolution to people trained for that purpose. ‘You will be hearing from my solicitors!’ Those are the experts who know what remedies are obtainable, or how far our interests can be pushed.
The work of lawyers is considered that of a profession. To call an occupation a profession suggests a difference from other ways of scratching a living. There is, in origin at least, the suggestion of calling or vocation.
That said, professions have their own associated pathologies. George Bernard Shaw fashioned the line that ‘every profession is a conspiracy against the laity’. Adam Smith famously wrote in The Wealth of Nations that ‘People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.’
I want to focus for a moment on the nature of professional legal work in litigation and dispute resolution before considering the emerging profession of a mediator.
The question arises now, whether there is a useful distinction that can still be drawn between a profession and a business. One hears a complaint in recent years that the law has become just one more business. Indeed promotional advertising addressed to the business community often makes a virtue of this development, suggesting that legal firms have a better understanding of the needs of business as a result of being, so to speak, in the same boat: ‘We are [firm XY], where law means business…’.
What are the distinguishing features of a profession? Generally, one finds an insistence on codes of practice which its members must adhere to. Since lawyers hold a monopoly on the workings of the justice system, their conduct is heavily regulated. By contrast, persons working, say, in the IT sector will have to comply with relevant law applicable to that activity, but will not be subject personally to regulation as to how they conduct their business.
Another aspect is that professional work seems to involve a higher degree of responsibility for the welfare of the person to whom services are supplied. It should not be a case of profit maximization, of caveat emptor. The expression ‘client’ rather than ‘customer’ indicates a different standard.
Admittedly, much legal work performed in modern conditions, such as that associated with purchase and sale of property, or construction or corporate mergers or acquisitions might be considered as, simply, one more business. On the other hand, work in handling civil disputes can more readily be seen to have a more significant professional element, especially if promotion of a more peaceful, less strife-ridden society is to be seen as a public good.
The idea of a profession would also suggest some level of restraint as regards charges, as opposed to ‘what the market will bear’. The historic appendage of a cloth purse till attached to a barrister’s gown, into which a couple of guineas could be slipped unbeknownst to the noble advocate may attract derision, but there is some kind of echo there, however faint.
Within a law firm, it is hard to justify the use of fee targets for practitioners in dispute work if the social aim is to encourage expeditious settlement. Any scheme to base remuneration or bonuses on such targets would surely be suggestive of a Faustian bargain.
One would also expect a measure of restraint as regards marketing of professional services which would not be applicable to pure business. This is a difficult area because lawyers have to take account of what competitors are doing. Yet a young solicitor observed to me rather sadly: ‘I was brought up to believe the fee follows the work, but now it seems the work follows the fee’.
A distinguishing feature of professional work is that it attracts the expression ‘practice’ as a description. There is a whole field of philosophical commentary as to the nature of ‘practices’ and their contribution to society. The philosopher Joseph Dunne has illuminated this subject. His words can offer an inspirational ideal for professional practice.
A practice is a coherent and invariably quite complex set of activities and tasks that has evolved cooperatively and cumulatively over time. It is alive in the community who are its insiders (that is to say its genuine practitioners) and it stays alive only so long as they sustain a commitment to creatively develop and sustain it – sometimes by shifts which at the time may seem dramatic and even subversive. Central to any such practice are standards of excellence, themselves subject to development and redefinition, which demand responsiveness from those who are, or are trying to become, practitioners.
Engagement in the characteristic tasks of a practice, which embody standards that challenge one in so far as they are beyond one, leads, when it goes well, to the development not only of competencies specific to that practice but also of moral qualities that transcend it – that characterize one not just as a practitioner in that domain but as a person in life.
He adds that a thing worth noticing about what may be called the economy of a practice is that it is not based on scarcity. Thus if one person excels it need not be at the cost of the other people’s chances to develop their talents. He concludes that ‘Every achievement of excellence enriches all those who participate in or care about a practice; it can be an occasion for admiration or even celebration as well as sometimes, of course, for attempts at emulation.’
What is spoken of here, of course, is practice at its very best, but to express the ideal is to provide some yardstick by which particular work settings can be judged.
What then of the newly emerging profession of mediator, an activity recently given status in Ireland as a result of the Mediation Act 2017? This Act, which envisages the establishment of codes of conduct for mediators, had a lengthy gestation, starting with a consultation undertaken by the Law Reform Commission nearly a decade ago.
The main impetus has been dissatisfaction with the standard model of litigation, built as it is on adversarial confrontation, and correspondingly high costs. There is increasing resistance to what is labeled as ‘binary’ thinking, and promotion of what is termed a ‘non-dual consciousness’. The mediation model asks parties to recognize that they have a shared problem.
Patterns of practice in mediation are still emerging. Those who have engaged in this work for many years can be heard to complain that lawyers are wanting to take over the field, and to run mediations as if conducted on a practice ground so as to play out what a courtroom outcome would look like.
The kind of intellectual activity associated with intensive legal work – what a neuroscientist might classify as left-brain-activity, may be necessary to provide an understanding of a case that has proceeded along the litigation path, but the actual work of mediation calls for capacities more associated with the right hemisphere of the brain, and recourse to intuition.
It is notable that the Mediation Act requires solicitors to give advice on the mediation option before legal proceeding can be commenced. The essential innovation introduced by the mediation alternative is not the arrival of the mediator on the scene, but a decision by parties in conflict to face each other to discuss their differences. This opens the possibility for value added in the engagement of a third party to facilitate the process.
I suggest that mediation reaches its full potential when the mediator is able to bring to the table a certain capacity that may be called a ‘presence,’ a personal stillness that is evident even in a highly charged setting. This attribute will be hospitable to the parties. It will also support what may be considered the particular ‘magic’ of mediation, a feature unmatched in the adversarial legal system. This is the right of a mediator to have confidential discussions with each party to the conflict. To the degree that the mediator’s energy is sufficiently receptive, a party will be encouraged to be frank in such meetings, to look at both sides of the case, and to recognize their own share in creating the conflict.
The kind of energies called for in mediation are exactly opposite to the driven, ‘weaponised’ environment associated with legal processes. The quality of presence that I have referred to is not beyond anyone working in dispute resolution, but it needs to be cultivated. For some this may mean consistent Zen meditation or yoga or like practices (the body is always present), or long walks with the dog. A certain spaciousness is called for.
To imagine that what is called for in mediation is a mere brokering role, or knocking heads together, is to misconceive the potential. And mediators need to remember that reference to what it might cost to have a legal case run through the courts’ system is a poor yardstick with which to measure the value of the service.
A younger colleague who worked with me, who was generally considered to have ‘got’ mediation observed that she had come to realize that ‘mediation is mostly about doing nothing’.
But then, as we know, a certain kind of non-doing can be very powerful.
And as to selling the mediator’s expertise, there is a wisdom in the story of the famed Rabbi who consoled a young colleague disappointed at how few people were seeking his advice: ‘They come to me’, the great man said, ‘because I am astonished that they come, and they do not come to you, because you are astonished that they do not come’.
Fergus Armstrong is a mediator and former lawyer: www.oneresolve.ie
Feature Image: Maggie Armstrong