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Derek has a judicial career spanning 17 years. He sits regularly on two judicial Tribunals. He has chaired over 600 hearings in which expert evidence has featured. Derek holds a Chair in Dispute Process Law at the University of Aberdeen.
We are pleased to announce that Derek will be leading SpecialistInfo’s new training course for Scottish expert witnesses: BEING AN EXPERT WITNESS IN SCOTLAND: PRACTICAL ESSENTIALS – A ONE-DAY ONLINE COURSE (5 CPD hours) from September 2022
In my experience of conducting numerous mediations, it seems that disputes of any type can be driven by three main issues: perception, personality and communication.
We all perceive the world differently. Even a concrete item such as an e-mail can, although in black and white, be perceived differently by the author and the recipient. When it comes to fluid in-person interactions, the problem of perception is amplified.
Where each party understands the perception of the other person in the dispute, this often explains their behaviour. This can help to remove ill-feeling caused by that behaviour, paving the way to discussing a solution.
We have different personalities. Some of us are calm and collected. Others are emotional and reactive. Some of us are broad-brush visionaries; others thrive on detail. Some of us like to work independently; others need support. Recognising the personality traits of those around us helps us to see how they approach an issue, and this can allow parties to understand why a particular problem has arisen and how it might be fixed.
Communication has been mentioned already. Many disputes arise, at least in part, out of misunderstandings from things written or said. Taking offence when none is intended is not unusual. Making wrong assumptions about motive from an ambiguous or badly expressed communication is common.
The mediation process allows perception, personality and communication issues to be identified, explored and recognised. That is half the battle. The other half is: what should be done about them? The practicality of mediation means that precise and bespoke solutions can be built, agreed and recorded in writing. This means that not only is the relationship repaired, similar issues are unlikely to arise in future.
Where perception, personality and communication issues exist, the law will not resolve them. This is not a criticism of the law: it is not designed to resolve these things. Indeed, a legal outcome can worsen relations, since it relies on a 'win-lose' decision, not on building bridges.
That's the answer to the question: Why Mediation? It works.
The title of this section could be 'how to teach law', but that is perhaps too controversial, for now at least...
Teaching dispute resolution to hundreds (if not thousands) of postgraduate and undergraduate students has led me to two guiding principles on how that is best done.
My first principle is that process subjects should be taught by taking students through that process, stage by stage.
Arbitration is no exception, and I have recently finished coordinating another year of the University of Aberdeen's Professional Arbitration Skills course, taught over 10 days across 3 weeks. Students are put through their paces by a number of expert external tutors, each of whom teaches a different part of the process: the arbitration agreement, jurisdiction, written pleadings, preliminary hearing, document discovery, expert witnesses, oral advocacy, the hearing, the award, award challenge and award enforcement. This gives students a global view of the process, so that they can understand how it all fits together, from start to finish. It works.
Back to my initial point: all law could be taught in this way - I call it a 'transactional approach' and I recently wrote an article in the journal for Scottish lawyers¹ on the subject.
My second principle is that process is best learned by doing as well as understanding. That’s why when teaching mediation, I find that students learn from role-paying and observing role-play. They can really see the value in the techniques when they try them out and see others doing so. It brings the theory alive.
In arbitration tuition, examples of learning by doing include: drafting an arbitration agreement, making an oral submission, writing arbitral pleadings and preparing an award. Having used all of these in class activities and assessments, it is obvious that it brings home the nuances of these critical practical tasks.
A creative, practical approach to how we learn is needed when it comes to the law, especially process law.
These guiding principles allow teaching on dispute resolution to come alive and be memorable.
That's how to teach the subject (in my view, anyway!).
Derek has his own dispute resolution consultancy, Auchie Dispute Resolution: www.resolve-dispute.co.uk
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