I have watched the Brexit process for some time.
I remain confused about the principals, process and end game guiding our political leaders in the UK.
They may well be making it up as they go along, which isn't a bad thing when faced with a radically new and potentially overwhelming challenge and a deeply divided party and country. Making it up as you go along doesn't give a great deal of comfort to those whose lives will change as a result of Brexit, but perhaps our leaders are not focussed on giving such comfort for the moment.
Mediation may point to a way forward in these rather confusing times, recognising that our leaders are negotiating rather than mediating.
In a typical mediation, we find the following:
- Relative clarity about the issues which are disputed
- Unanimity of view from each party, that is each individual or team involved, or at least a divergence which is manageable. It's not unusual for parties and their legal advisors to have their differences, but they are rarely significant
- Some understanding, however notional, of what will be required to settle the dispute, coupled with a recognition that the cost of settling is far less than the cost of continuing
- All discussions are confidential and "without prejudice" which means that nothing said within the mediation can be used in subsequent legal proceedings. In simple terms, parties are free to talk and explore options without making a commitment or creating a liability
- In the same spirit, the mediation isn't complete until an agreement is signed so there is time and space to debate and work through the detail of any settlement
- If legal advisers are present, they tend to be experienced, knowledgeable and capable of assisting their clients to seek an agreement. There is general agreement about the legal framework in which they are operating and disagreement on the legal issues at hand. In fact, it is rare in a mediation for lawyers to mutually agree a legal analysis of the issues at hand
- In complex cases, a lot of the groundwork can be carried out in advance
- In complex cases, principals guiding the mediation can be agreed and certain issues parked to allow the mediation to continue
- Those involved share the costs of the mediation
- With some effort, the scope of what is possible can be expanded e.g. in many employment disputes an apology can go a long way to resolving a dispute and takes the focus away from money
- The protocol for the mediation is agreed at the beginning - mutual respect, listening carefully to the views of others even when in profound disagreement, preparedness to contribute and be challenged etc
- The focus is on what is happening in the room and not elsewhere, i.e. the level of background noise is minimal
- There is a sense of pace and momentum with a recognition of inevitable reversals over the period of the mediation
- If power lies with one of the parties in the room, this is recognised if not always respected
- The final agreement is owned by the parties and is created by them, with support from lawyers where appropriate
- And, of course, skilled mediators are present to keep the show on the road, in part by helping the parties focus on the future rather than being stuck in the past and immediate present
Recognising the parallel is not perfect, if I apply each of the above to the current Brexit process, the opposite appears to be the case.
We are either in a different world of resolving profound differences which will create new and potentially valuable tools and processes or the whole thing is a train wreck.