How does the way that humans have evolved explain the way in which we create and approach disputes? Andrew Cromby, ADR Group panel mediator, asks whether  we can escape our aggressive nature and considers how mediation can help to break the cycle of competition and confrontation.

Evolved to fight

In Sir David Attenborough’s fascinating programme, “First Life[1]”, he traces the early development of animal species.  He points out that, at a very early stage, the physical pattern for virtually all animal life was set on this planet. As evolution kicked off, single-celled life became more complex.  Primitive eyes and noses appeared – so that food could be found.  Fins, tails, legs and other appendages appeared, to help get to the food. Teeth and a digestive system appeared too, so that food could be eaten – and competitors bitten.

Billions of years later that pattern is still seen everywhere; including when we look in the mirror.  What that pattern suits us for is to succeed by promoting ourselves first and others later – success on this planet mostly looks like getting to the food first, fighting to keep it and consuming what is available before anyone else gets the chance.

Is it any wonder, then, that our history is one of struggle, confrontation and self-interest?  Anyone inclined to operate differently probably never enjoyed the opportunity to pass on that characteristic to their offspring.  Here we are, at the end of our evolutionary process, shaped by it over aeons, and we exist to compete, to win, to succeed at the cost of others.  It is hardwired into what we are.

A modern take on an old problem

Tragically, there’s still plenty of old fashioned physical confrontation on earth. Even where that is not the case we have found ways to exercise our need to fight – legal battles have replaced fist fights (or worse) in many cases. Emotion, anger, and the instinct to beat an opponent, have all arrived at a new venue, but don’t for a moment think that these primal motivations have changed much from what has gone before. Recognising that can be the first step on a different path, one where we try to adopt an analytical, rather than emotional, response to how we deal with each other.

The problem with aggressive confrontation is that it has the power to damage all of those who participate in it – and that applies to legal disputes too.  Realisation of that fact often escapes parties until a dispute is underway.  Only after all the pushing and posturing has resulted in a fight does reality begin to bite, and the parties begin to question what they have let themselves in for.  What they actually need, as opposed to what they thought they needed (a fight), is a resolution that leaves them without the risks of combat. Those risks include, potentially, defeat and financial hardship – in extreme cases, ruin.

After all the emotional and financial expenditure incurred by the parties in getting a dispute under way, it can be hard to apply the brakes. However, mediation provides precisely that opportunity.

What does mediation offer?

The object of mediation is for the parties to reach a mutual agreement with the assistance of a neutral third party, the mediator, who guides their negotiations.  The mediator facilitates the resolution of the parties’ differences by seeking to understand and focus their attention on their needs and interests and by exploring the alternatives to a protracted dispute.

It is a confidential process which takes place on the basis that what is communicated between the parties at the mediation is also “without prejudice.”  That means that what is said at a mediation cannot be relied on or referred to outside that process without the parties’ agreement. This gives the parties the opportunity to speak openly and, when assisted by a mediator, the process can be extremely effective.

– The involvement of a neutral mediator has a number of benefits. A mediator can:

• Separate the parties and convey messages between them with reduced levels of heat, promoting clarity by separating the issues from the personalities. That can help the parties to “play the ball and not the player”.

• Test the parties’ respective views on the merits of their respective positions. That’s effective because mediators don’t have any skin in the game – they can be trusted precisely because they have nothing to gain.  If the mediator is experienced in dealing with disputes, their challenges to a party’s closely held beliefs may gain traction, when the same challenges from an opponent would be rejected out of turn. That can help the parties’ positions move towards each other.

• Suggest outcomes and alternatives based on their experience. A fresh perspective can amount to a fresh roadmap, helping the parties to find a way out of their bind that simply has not occurred to them.

• Give the parties an opportunity to explain themselves and express their feelings. That catharsis can help break the emotional blockage that stops them thinking about a positive way forward. The parties are unlikely to be able to do that with each other directly, without winding the strength of feeling in the dispute up even tighter.

• Make the parties behave in a more civilised way. We are all inclined to be less petty when what we are doing is being seen by someone who isn’t caught up in the emotion.

– Mediation can also give those participating a flavour of what the dispute is likely to feel like if it gets to court. There are very significant differences between a mediation and a court hearing – but enough similarities to make parties to realise that what lies in store for them, if settlement isn’t reached, is unattractive.

All of this goes some way to explaining the success rate in mediation – typically, more than 80% of mediations result in a settlement.

Mediation has a lot to offer.  If it can help sense to prevail over feelings, that is no small thing – it is very significant, given human nature.

Andrew Cromby is an ADR Group panel mediator and the regional office head in London of national law firm, Weightmans. He specialises in partnership and business ownership disputes.

[1] First Life – 2010, BBC, Written and presented by Sir David Attenborough – see BBC iPlayer