As another year dawns, it is good to reflect. How privileged many of us are. We are given opportunities to help people who face difficult and important matters. Often these have a significant impact on the lives of those affected. Each deserves to be treated with dignity. I read recently that simply respecting one another is not enough; we have an obligation actively to promote the flourishing of others and to seek their welfare.
To what extent that last proposition is universal, I leave to readers to discern. However, in my role as a mediator, I see such commitment from lawyers and others on a regular basis. Often maligned as a profession, most lawyers would probably accept the positive obligation and strive to fulfill it. That deserves to be acknowledged. At moments of crisis or uncertainty, such an obligation also serves as a thought-provoking restraint on excess, or as encouragement to go an extra mile.
Recently, I also came across a vision of justice described as “law with a light touch”. Rather than seeking to legislate for every situation when something goes wrong or adjudicate on every claim, this is humble recognition that no legal system can correct every alleged harm or alleviate every wrong. Legislators and judges make mistakes too. It falls to each of us to do our best to help people reach an outcome which best serves their real needs. This will sometimes require a formal decision. On many occasions, it will require us to find informal solutions. The scope for this is extensive, as every lawyer knows.
In a ten-day period last year, my work as a mediator took in a number of diverse situations which benefitted from such an approach. Most involved lawyers. Anonymised to preserve confidentiality, these situations included meetings with townspeople explaining to company executives about the effects of nearby blasting work, and sessions involving a national sports body handling a sensitive issue with one of its athletes who was not permitted to compete at the level she expected. I facilitated discussions where a bank customer explained the impact of the termination of loan funding on a family business, while the bank wrestled with recovery of a large debt. I spent hours with a senior employee, of international distinction, as she came to terms with damage to career and reputation for which she blamed her employers. I watched the owner of a ground-breaking national facility plead with the builder to rectify faults which threatened its future, while hearing that what happened may not have been anyone’s fault, and I listened to representatives of a national insurance broker engage with an entrepreneur who had been denied insurance recovery after her life’s project had been written off following an unexpected calamity. And there was the international trading company negotiating with a relatively small but passionate supplier whose company had been forced to close after a change in company policy had allegedly resulted in loss of much of its business.
What do experiences like these have in common? Each carries with it a feeling of loss, not just in money terms but in the sense of hope, dreams and expectations. There can be a sense of grievance that someone else’s actions, over which one has little or no control, have led to the loss. Hurt, anger, resentment and a (usually disproportionate) desire to requite then follow. The mere passage of time, the length it takes to get to a resolution, can be a problem in itself. By the time the talking starts, it is often "too late"…. There is a sense of helplessness, with everyone caught up in a complex system with its inefficiencies, or downright inertia, over which nobody seems to have any influence. Perhaps worst of all is the feeling of being ignored, whether inadvertently, consciously or through lack of communication. Time and again it comes back to communication. "Why did we/they not have this conversation a year ago?" Or as a senior adviser put it: "why the …. didn’t somebody say ages ago to these guys that they need to sort this out?"
As mediators and lawyers, we do what we do because it matters. We are helping people, including the apparently hard-nosed, to express loss, to talk about hurt, to regain control, to communicate about awkward things. We can help them understand each other, to acknowledge and apologise, to have that conversation, to rediscover humanity. Those mediations which led to final outcomes were concluded by the parties themselves meeting together with me (usually without advisers present, but with their full consent) and reaching agreement. That demonstrates “law with a light touch” and represents a return to self-determination which seems highly desirable.
Perhaps most important of all, therefore, is that those with whom we deal can, with our help and skill, regain their autonomy and their dignity. They can flourish. Achieving that is a worthy aspiration for us all in this new year.
This blog was published as an article in The Scotsman on Monday 5 January 2015