I have been writing articles for the Scotsman law pages for many years. Occasionally it has been difficult to find a topic or a theme. But this must be the most difficult of all. What does one say which has any meaning at a time like this?

I’ve been wrestling with what mediators can offer in the current uncertainty. I have devoted myself to the mediation cause for nearly twenty years because I believe in it. I believe in it because it nearly always brings out the best in people and helps them to move on to a different stage in their lives whatever may have been troubling them. It offers a buffer to absorb negative emotions and a bridge to a more constructive future. Done well, it helps people to acknowledge what has gone wrong, to accept the reality that things are not always as we wish them to be and that others may see things differently.

Mediation recognises the impact of adverse events and tries to find a way for people to offer reassurance wherever possible that there is a way ahead. It encourages people to explore what is really worrying them, to identify their underlying concerns and needs and to identify and assess the realistic options which are available. From that very often emerges a way forward with which people can live, not perfect but manageable and durable.

Mediation works of course on the principle that we gain more if we help each other. Paradoxically perhaps, if I try to meet your needs, it is likely that, over the long term, I shall gain also. Never has that been more true than now. We are truly interdependent. We need each other more than ever, even while we are socially distant. The zero-sum game of winning and losing is an easy fallback in times of stress but ultimately it usually leads to losses for all.

What can we do? We know that the current situation will produce disputes and conflicts of all sorts. We know that there will be many unresolved issues which have preceded this time of sudden change. All of us associated with the legal profession can look out for opportunities to help others who have hit a difficulty. Not just in the conventional way which has been part of our business model but in new and creative ways. What front line could we be on?

How about contacting all clients and offering a listening ear on the phone? Many will be doing just that already. What sort of toolkit might be useful? Are there essential skills for handling difficult conversations for example? Of course there are.

I offer here are a few tips to use and to pass on. They just might make a difference at the margins. Every little counts, especially when the enormity of the big picture is so hard to contemplate.

Ask questions that get under the surface: How are you? What is worrying you most? How can I help? What realistically can you do? Listen really well: when under pressure we can so easily jump in and express our own thoughts. People may just need our silence and full attention. Then we can acknowledge and accept what we hear and recognise another person’s experience for what it is.

Be careful with language: under pressure, we may rush to say things which we don’t really mean or which come across as unhelpful. Pause for a second or two and let the conscious mind formulate the words with as much compassion as we can muster. Remember that, even in this crisis, we may see things differently from others – not because we are good or bad, right or wrong, but because we are human, with all the vulnerabilities, assumptions and even prejudices that make us who we are.

And very pragmatically, make use of the online technology which opens up new avenues for communication for mediators and advisers alike. We are finding that a silver lining is the ability to continue to offer to help our clients by using the online platform Zoom, for example, relatively easily and in many ways ideal for this quite remarkable time.

We need to continue to find ways to offer hope and help. To do that, we must continue to communicate. And if we are not sure what to say, let’s just say the kindest thing.


Originally published in The Scotsman on Monday 30 March 2020.



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