17 January 2020

Mediation is usually regarded as an alternative to litigation – it is part of a raft of interventions referred to as alternative dispute resolution which includes mediation, conciliation and arbitration.

A mediator is often brought in when two parties have been to their lawyers, letters have been exchanged and, sometimes, court proceedings have commenced. In these cases, it often is about the money; but as I have written before, mediation allows the protagonists to take control of their dispute and have meaningful input towards a mutually acceptable outcome.

 Disputes are always about relationships – it may be the breakdown of a relationship that led to the dispute or the dispute may be about how to improve the relationship. It may be a commercial relationship, one between employees, or members of a family trying to navigate their roles in family enterprises when dynamics change within the family.

I have been involved in a mediation of this last kind. The first session was with just the four adult siblings and the parents – no lawyers, no other family members. There were a myriad issues they wanted to talk about to do with the way things stood currently. I could have ‘mediated’ these issues in a standard way and we might have achieved something, or nothing. Instead, I asked them to put the current situation to one side and I had each of them talk about “how I would like things to be” and, “what is important to me?”

It soon became apparent that this was all about family relationships, personal aspirations and, perhaps not surprisingly, about the past.

What they ended up talking about were things all families talk about: who did what to whom when…; who failed to do…; who promised to… Much of it had its origins in the past – the distant past. We spent quite some time dealing with childhood relationships which were still informing the adult sibling-sibling and sibling-parent relationships.

The disagreements about how the family businesses should be run had their genesis in the historic cut and thrust of growing up in a ‘normal’ family.

We held two more sessions, during which the six participants were able to hear what each of the others said and what was important to the others. Through this process they learned that their various ambitions could be met and that, in fact, they were not deeply and irremediably at odds with each other. There was a palpable feeling of mutual trust and understanding – and love – well before the end of the third session.

A document was drawn up in this third session, which set out the individual aspirations and wishes of each of the participants. It contained a statement that each respected the aspirations and wishes of the others and would endeavour to find a way to have each of those aspirations and wishes be realised. They were all eager to find ways to have this work.

They were now able to move on to consider possible scenarios for the businesses. The first three sessions were held in a cosy family setting. The next session – the ‘business’ session – needed a large boardroom, as it involved fourteen people apart from me: the family, three lawyers attached to various parties, two accounts and three spouses.

I anticipate some readers shuddering at this, envisaging an impossible situation, impossible to manage. But manage we did.

I had prepared carefully. I had pre-session conversations with each of the lawyers and accountants who had been invited by the family members, and with the spouses. Clear guidelines were agreed on by all and were set out in writing. The professional attendees – and the spouses – were there to witness the proceedings and take note, for later private discussions with those they were attending with.

There were to be no binding agreements reached in this session, only heads of agreement and a memorandum of understanding. The role of the legal and financial advisors was to help the family find a way to realise their expressed aspirations for the family enterprises as set out in the document signed in the third session.

A few times I had to remind a lawyer that they were not there to prosecute their respective client’s position, as there were no ‘positions’ at this stage.

At the end of this session, we left it open to have a further session if needed. It wasn’t needed. Over the next two months, the members of the family were able to agree on a re-structure of the family businesses, real estate holdings and family trust in a way that largely gave effect to their various, and no longer competing, wishes. Some of them also redrafted their wills on the basis of what they learned in the fourth session and subsequently in consultation with their own advisors.

I accepted an invitation from the family to have dinner with them – a large, happy gathering with three generations animatedly interacting. One of the siblings expressed appreciation for my insistence that the early sessions be purely with the family members. She said that it made a huge difference to the fourth session and later discussions with their own lawyer as they worked out the details of the new arrangements.

For me as mediator, this was a risky undertaking. It could have made things worse for the family and it could have ended disastrously. I trusted the wisdom imparted in my mediation training and in the experience I have accumulated over the years: there are almost always underlying currents and hidden past experiences that inform current issues in a dispute. Designing the various sessions as I did – with clear agreements from all involved – I was able to assist the parties to bring those currents and experiences into the open and allow them to process them sufficiently for them to move on constructively.

I am sure that those issues from the past will come up again and may again get in the way of them working together; after all, I was not running group therapy sessions designed to ‘mend’ family relations. However, as a mediator, I was able to facilitate a sufficient airing of the undercurrents for the participants to forge a useful business relationship that, hopefully, will serve them for some time. While, as mediators, we rely on a tried process to assist parties to sort out their differences, it pays to be creative. This was far from a free-for-all – I set up strict guidelines and procedures and all participants signed off on these. This allowed me to remain the impartial conductor of the process.

© 2019 Daan Spijer

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