There is a not-so-new kid on the legal block known as alternative dispute resolution.
It is touted as the best, most successful, efficient, and cost-effective way to resolve disputes. It helps us to shy away from litigation and that big bad wolf - a court.
Courts get a bad rap for dispute solving. The litigation process is, or at least, is perceived to be, impenetrable, complex, ponderous and costly. And so it is, sometimes. Its blunt purpose is to find winners and losers or determine right from wrong – so much for restoring relationships. Some lawyers have even refined the art of exploiting the process for their own benefit.
Best avoided perhaps. Instead, go for the informal approach - ‘let’s sit down and have a talk’. Indeed, let’s have a mediation.
Done well and with the combatants properly motivated to resolve it, mediation can be very successful in achieving its admirable purpose – no victor and vanquished, just a fair result in all the circumstances – usually a compromise. Some parties shake hands at the end of a mediation. They rarely do at the end of a court hearing.
However, I fear there is too much of a rush to, and hype around, mediation’s effectiveness in resolving certain types of disputes. These disputes can only truly be resolved by a court where judges are empowered, paid to, and are good at, doing something, namely, making decisions, not searching for a compromise.
This is apparent when you delve into the lexicon of disagreements and disputes that arise within families over their ageing parents. Here’s a recent example in which I was involved:
- an elderly mother was still living at home and was becoming increasingly frail;
- not unusually, there was a schism amongst the adult children about the best solution for the looming threats – the usual two factions - stay at home with increasing support or enter an aged care facility;
- two of the children had lawyered up – one being me; and
- the other lawyer contacted me and suggested we have a mediation to resolve it.
It was a well-intentioned suggestion and superficially attractive. But was it really sensible?
The forgotten issue that loomed over the imbroglio was the small matter of mum’s capacity. Did she have the capacity to decide where she wanted to live and to appreciate the consequences of that decision?
Regrettably, each side in the imbroglio had obtained their own specialist medical report on mum’s capacity and the medical opinions were diametrically opposed to each other. In other words, the doctors couldn’t agree on the question.
As usual, I politely pointed out to the solicitor that his suggestion was well-intentioned but fatally flawed from the start. Unless the issue of mum’s capacity was determined (not agreed), the question of where she should live could not be negotiated, let alone, resolved. Further, I helpfully pointed out that a mediation could not reach a legally effective conclusion about her capacity that would necessarily be accepted by others. It may seem like a success if a piece of paper was signed by all the adult children at the end of a mediation as to whether mum did, or did not, have capacity but it wouldn’t cut it with third parties, like banks.
The only solution was to have an appropriate authority make a decision about it that would be legally recognised. That authority was a court (or in this case, a tribunal).
That’s exactly what then happened.
Mediation is an alluring concept and device to circumvent the traditional dispute routes. Sometimes however, we just need to take a dispute out of the hands of the parties and into the hands of someone else – someone who can make a decision.
If you are in a similar situation as described above and are seeking advice, contact the Estates and Succession team at HopgoodGanim Lawyers.