Mediation - the Ultimate 'Equality of Arms' in a Dispute?
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1st May 2024
The term, an ‘equality of arms’ is not one I would readily use, or one that I believe I ever have used, even in regards to ADR (alternative dispute resolution) and mediation. Probably the reason for which I have come to think about this phrase in more detail in regards to dispute resolution (and ultimately mediation), is to do with the context in which I recently heard it used.
During a recent webinar/induction with Sport Resolutions, (an independent, not-for-profit, dispute resolution service for sport operating globally) after being honoured to have been selected and subsequently appointed to their panel as an appointed mediator – the term was used by the Chief Executive of Sport Resolutions as one of the seven key principles of Sport Resolutions when addressing sports related disputes.
With mention of an ‘equality of arms’ used in the same context (and presentation) as mediation, it resonated with me quite strongly, and immediately prompted me to think whether mediation was a very useful, if not the ultimate tool in providing an ‘equality of arms’.
What Exactly Is an ‘Equality of Arms’?
I am sure the meaning of the phrase an ‘equality of arms’ will have a different meaning for most people when it comes to disputes and dispute resolution; given our various professional and personal backgrounds, as well as our ethics, morals and life experiences.
For me the phrase ‘an equality of arms’ in a sporting sense is akin to the phrase of ‘a level playing field’, and moreso in a football sense of ‘11 versus 11’.
Yet even in those terms, there are times when the opposing parties won’t be equal; whether it be in such variables as ability, skill, knowledge or resources etc. – such as The FA Cup in England where a lower league team with limited resources may be drawn against a sporting ‘giant’, and thus that brings excitement due to the unlikely, yet possible outcome of the smaller team being victorious.
Yet that is competition, something that the parties readily sign up for, on the premise of a set of rules, the possible competition they will face and whereby some will expect to win, whilst others in reality don’t expect to win (which to them is acceptable based on their realistic expectations).
Sporting Competition vs Sporting Dispute (or any other dispute)
Where this ‘equality’ is exhausted in terms of the sporting competition metaphor, is when it comes to a dispute, whilst laws and regulations in such forms as litigation and even arbitration (in such things as sports governance), seek to provide a fair mechanism in terms of resolving a dispute on a basis of the likes of common law, jurisprudence and governance codes. At times, even this arena is weighted heavily in favour of one disputant party over another
One party in a dispute will often have far greater financial resources than another, and with that, be able to deploy the finest and most effective legal counsel and advisors at their disposal. Or even use those financial resources to stretch out proceedings to a point where the other party cannot afford to continue. Even the knowledge of how well resourced one party is, will deter the other from even pursuing the dispute, a claim or even considering proceedings.
A non-sporting case that was recently well publicised, whereby the arguably weaker side relented in their cases and accepted a settlement was that of the actor Hugh Grant. Now some may well be thinking that he accepted the settlement, and thus this is similar to that of a negotiation or mediation settlement; when considering the background of the case and the decision to ‘settle’ this isn’t necessarily accurate. As to pursue the case further, the actor claimed that even if he was to win the case, it was unlikely he would be left with anything from the award in the case once his legal costs had been taken into account.
And ultimately even if he won the case he would have lost financially.
How Does Mediation Provide an ‘Equality of Arms’?
In essence, nothing currently can truly (in my opinion) provide an ‘equality of arms’ in a dispute, and that includes mediation, although mediation can increase the ‘equality’ in a dispute when compared to the likes of arbitration or litigation proceedings.
Whilst ultimately the outcome of the dispute (through mediation) is in the hands of the disputant parties, and no settlement can be agreed without their mutual agreement and acceptance. It is still possible for one party to employ the best legal advisers to help them make their ‘case/claim’ more convincing to the other side, or employ investigators and the likes of expert witnesses to support their claims.
Yet as I have already stated, without the acceptance of the other party to an agreed settlement, whether arguably stronger in terms of resources, the aforementioned settlement cannot be reached – and thus this is the closest provision for an ‘equality of arms’.
The Power to ‘Side-Step’ Mediation
However, there is one crucial aspect where mediation fails in this provision of an ‘equality of arms’. And whilst just one of the benefits of mediation is the fact it is a voluntary and non-mandatory process (in the majority of cases), this does undermine it in the effective provision of an ‘equality of arms’.
Hence, if a party were to believe that its ability to use power, finance, resources and knowledge in its dispute for a successful outcome through arbitration or litigation; then of course they could reject the option of mediation (as is their right).
Yet there are cases now, particularly in the UK where this in itself may prove to be a risky practice. Thus, the party making judgement in such an arbitration or court (litigation) case, may consider whether a party was reasonable in rejecting mediation (and/or entered into mediation in good faith, should it have failed) and thus take such action into account with the award or award of costs, no matter if the party is the ‘winner’ or the ‘loser’ in the case.
Mediation: Faultless or Flawed (as an ‘equality of arms’)?
So, is mediation the ultimate tool in providing an ‘equality of arms’ in a dispute? In some cases, it may well be, but it still has a considerable ‘way to go’ in being faultless. Yet maybe in time those shortcomings will be addressed in providing that ‘level playing field’ in a dispute (whether sports related or otherwise).
Afterall, mediation is still a relatively ‘embryonic’ (when compared to the likes of arbitration), if not a largely un-known concept in many industries, cultures and countries; still ‘finding its feet’ and establishing itself. Even the many ongoing internal debates within the mediation community, not least whether mediation should be mandatory or not, and how that could be achieved, shall continue.