Online Litigation Compared to Online Mediation

There are times when conciliation doesn’t work, and in court you still end up. Last week I supported someone in their small claims court hearing, by acting as a “McKenzie friend”. A McKenzie friend is a lay person who, although they do not have the right to speak for you or address the court directly as a lawyer would, goes with you to court to give moral support and advice, to help with papers and to generally be a level head.

It was the first time I have experienced a CVP (Cloud Video Platform) hearing and, until the moment it began, everything felt much like setting up for an online mediation. We were logging on for all the parties to speak to an impartial person who would provide a solution to the problem.

But once we were in it, I started to note the differences. Having thought about it more, I realise that even the similarity beforehand had only been superficial.

There’s always some anxiety leading up to a mediation but, by comparison, the anxiety of the person I was supporting here was off the chart. Anxious about what the process would be, anxious about seeing the other party’s face after a number of years and about listening to arguments spoken out loud that had already made the blood boil on paper, anxious that this was unstoppable, that all agency was forsaken and that the decision was solely in a stranger’s hands.

We did not know anything about the judge, and the parties had not had any choice about who it would be. While every judge is trained to be impartial, they are human and the final decision is theirs. There are lots of factors within their own experience that affect how they will view the facts. That’s kind of the point.

In a mediation, I have the luxury of learning new perspectives from the parties and empathising with novel paradigms in every dispute. If there is common ground then I can find it, but a judge is interested in discovering facts and applying the law. For a judge, there is little time for empathy, because they have only a few hours to assimilate all the details well enough to impose a reasoned judgement. Different humans make different decisions, and that’s based on everything from their life experiences to what they have eaten recently. Judges specifically avoid being influenced by the wants, needs and perspectives of the parties.

There was very little I could do to ease all these stresses. However, of the many elements of mediation that were missing, there was one that I could provide in advance, and that was what is known as “venting”. Before you can make sense of something complicated and stressful in your life, you need to talk freely and be listened to. It’s the reason that talking therapies for trauma are so successful. It’s a clinical fact. At the beginning of a mediation, I ask each party separately to tell me how they see the situation. It’s not only for the parties’ benefits. As the jumble of thoughts pour out I do actually listen closely, and as we circle round and round the issues, both I and the person themselves will home in on some key facts and some clarity. It’s not a process that can be hurried. It’s also not something that has any place in the court because feelings are not relevant.

And that is the attraction of court. In a situation where you believe that your perspective is the true one, it’s an opportunity to impose your truth on your opponent and punish them. Disclosure means that you can also force the other side to tell you parts of the truth that you suspect but don’t know (in a mediation their facts stay with them and yours with you). If you can hold your nerve and prove your case with strong evidence, then you get a judgement in your favour at the end that has the weight of the court behind it. If, and only if.

In mediation the mantra is: “by teatime this can all be over”, because it is in the power of each party to control the outcome and walk away with their own win. Our mantra on hearing day was subtly different: “by teatime this will be over”, because win or lose there would be a result and some kind of an end to it.

When the judgement comes you had better make sure that you have made no mistakes, had no bad luck, convinced this particular judge that you are right, and definitely have the law on your side. The court will impose one truth and it might not be yours.