We all experience conflict. We wouldn’t be human if we didn’t. We’re Simians navigating a tough world, competing for limited resources, with limited time. It turns out that disagreement is a natural and normal part of life – just ask anyone who’s married. But as natural and human as this dispute thing is, and despite the endless wars, divorces and subsequent jurisprudences us homo-sapiens have collectively accumulated, we seldom seem to have the wisdom to navigate conflict effectively or constructively. Put differently, when we disagree, most of us still choose to fight…
Don’t get me wrong, most of us are able to manage trivial tussles and misunderstandings relatively effectively (at least those tussles which we choose to address rather than ignore!), and most of us have developed skills and strategies to deal with these minor disagreements. However as soon as conflict escalates beyond a certain point, we lose the ability to approach the issue rationally and are overcome by emotions of distrust, anger, fear and accusation.
What we don’t generally choose to do is sit down face to face and calmly work through the issue together. Essentially as soon as we disagree, we take different sides of the table and drop all the other traits that make us human – empathy, understanding, dialogue. And there’s very good reason for this – it’s an incredibly hard thing to do! It’s much easier to process anger and frustration by employing a lawyer to write threatening letters or make big threats with formal legal proceedings in order to defend your position. Even more so if you believe you have good reason to feel aggrieved, hurt or vulnerable. All too often we hear the sentence, “well if they are going to act like that then…”
That’s not to say there is no place for litigation or the courts in our society. Sometimes it’s very appropriate to “lawyer up” or resolve a dispute through arbitration or a court decision. But, even when necessary there is a serious catch. A legal battle is always costly in both time and money – whether you’re right or wrong. You won’t see your day in court and get resolution for many months, and more likely years. And even if you do get to the end of the road, the decision-making process is taken out of your hands, and your fate rests with someone who may have scant concern for your real needs. It’s an emotionally draining process. Surely in 2018, there must be a better way… Wouldn’t it be great if you could sit down with someone you trusted, who is trained to help you work through the dispute and find creative ways to try and resolve it, efficiently and calmly.
The good news is that you can. It’s called Mediation.
What is mediation? It’s a voluntary, assisted negotiation process which utilizes a trained mediator as an independent third party to create a safe and controlled space for parties to resolve a dispute or difficult matter. Mediation is part of a world movement in alternative dispute resolution which aims to find better ways to resolve disputes, other than fighting.
The most compelling component of mediation is that parties have the opportunity to create solutions themselves that are in the interests of everyone concerned – with no obligation to adhere to those solutions until they are put to paper and signed by everybody. So then what keeps people in the room? Well, the alternative to not finding a solution is litigation!
Mediation is a powerful process, and it works. In the 2016 audit performed by CEDR (The UK’s leading mediation body), over 10 000 mediations were performed that year, with a success rate of 86%.
Mediation and other forms of conflict resolution have been steadily gaining traction internationally over the last few decades as an excellent alternative to litigation, but it’s only recently that South Africa is recognising that there is a growing body of professionally accredited, well-trained and experienced mediators that they can turn to for help.
About the Authors: Simon Attwell & Eitan Stern
Eitan Stern has years of experience as both a tech entrepreneur, a practising attorney and director of Legalese. As a problem solver and innovator, Eitan is skilled at brainstorming potential ideas and creative solutions with parties stuck at a difficult crossroads or negotiating terms. He’s worked with sectors across the board, from creative, advertising and media, to educational, non-profit and technology industries, and knows just how to turn mediation decisions into legal solutions.
Simon Attwell is proficient at managing relationships for organisations and individuals, having presided over the commercial and personal interests for Freeground Records and Freshlyground for the last 15 years. He has a thorough understanding of the complex world of publishing and intellectual property disputes, and experience mediating disputes in multiple areas of the entertainment industry. Additionally, a background in mediating commercial partnerships, as well as family will and estate settlements and tech-related issues, makes Simon a dynamic member of the Legalese team.