Former Solicitor thinks mediation could solve Torbay’s turmoil

Former solicitor Ben Tisdall has been closely watching the recent goings-on in the corridors of power at Torquay Town Hall.

Ben now runs Riviera Mediation from offices in Belgrave Road, Torquay, and this first-person piece explains the importance and significance of mediation to resolve all sorts of disputes - including who runs Torbay!

Ben writes:

In the recent piece, in this paper, dealing with a press release from Torbay Council about the ‘peace talks’ between the Liberal Democrats, Independent groups and the Conservatives, It was said regarding those talks, that ‘The process is still ongoing…It is not mediation it is facilitation. They are facilitating conversations between us.’

This perhaps shows a basic misunderstanding about what mediation is, and this paper’s editor, Jim Parker, commented that he thought it ‘was an independent mediator’ who was being brought in ‘to help them put their toys back in the pram.’

Since setting up my own mediation company in Torbay, a year ago, this misunderstanding of what mediation is, and how it can help is a real problem. It is nearly as big a problem as people thinking I have set up a meditation business – although I am sure we all, especially the council members, could benefit from taking some time out for a bit of meditation, as well. 

However, principally the role of a mediator is to ‘facilitate a conversation between two parties in dispute and try to find some common ground to assist with resolving their differences’. Facilitation and mediation are really one and the same thing. However, I have to admit having spent most of my career as a solicitor, I have never come across a ‘facilitator’ and would welcome more information about the identity and role of this person or persons and the cost?

What I can tell you is that although it may be unclear about what a mediator is or does, over the next couple of years more and more people will understand this essential role. 

Without much fanfare and with barely any press coverage, last October fundamental changes were made to Civil Procedure Rules which are the laws that govern almost all court cases, other than criminal and family law matters. 

What these changes did following a landmark case in November 2023, called Churchill v Merthyr Tydfil Borough Council, was allow Judges to order that those involved in a legal dispute must mediate before a matter goes to a final hearing for a Judge to decide. 

Even more importantly now if a person or business refuses to mediate or explore some other form of ADR (Alternative Dispute Resolution) the likelihood is that they may have to pay all of the legal and other costs of the other side if unsuccessful at court. 

Parties can now apply to court to force the other side to mediate, and I can see cases in the future, where someone might even succeed at court (for example in getting money owed off someone else) but not be given all their lawyers costs, because they would not mediate early on.

Why is this important? Because I can tell you, having worked in the courts for the past decade and a half, we have a broken legal system. 

Anyone who read the book The Secret Barrister, will be aware our criminal justice system is on its knees. 

What is less well-publicised is that all other areas of the law are equally in crisis, with massive delays, court hearings frequently cancelled, and the whole thing costing a vast fortune, with only the lawyers really benefiting. 

Take the family law system alone: I read that the average child contact case now takes 43 weeks to get to a final hearing, and a decision being made. Last year, the average divorce in England costs each party £35,000. In my experience that time scale and those costs are, certainly often far greater. 

Therefore, if you, for example, were being denied access to seeing your children you might wait the best part of a year to be able to do so, even though there might be no good reason why you should not. 

During my time as a solicitor, I had such cases that would often go on for 2-3 years! Quite recently I inherited a divorce case from another firm, where a man had already spent in excess of £200,000.00 in legal fees and the case was not over. He could have bought a house outright with that.

The main advantage of mediation is you avoid all that. You save time and you save money. More importantly you save the stress of being in dispute with someone. 

I have lost count, especially since Covid of the legal clients I had who were suicidal or expressed feeling that way. If you are dealing with something like a neighbour dispute, you are living and breathing it every day. 

If you are a business owner, the dispute and dealing with solicitors, eats into your day, when you could be spending time actually doing work and making money.

Since setting up Riviera Mediation, we have also dealt with families who are arguing over a parent’s estate and as a solicitor I certainly dealt with some horrendous cases with siblings who, for example, told me they would all have Sunday lunch for the past 30 years, each week, but now they were arguing about money would not be in the same room with each other. 

Often in such cases a vast amount of the money got eaten up in legal fees like the Charles Dicken’s case of Jarndice v Jarndice in Bleak House. 

What all these scenarios have in common is that long court proceedings tend to make the situation worse, not better. Anyone who has been involved in a dispute or court case will tell you, even at a low level its impossible not to live and breath it.

The reason I am practically evangelical about mediation is that I see it work on a weekly basis. Situations that you think are impossible can be resolved in a day. 

I did a mediation for Exeter University recently, between two academics who had not spoken to each other for weeks. 

By lunchtime they were having lunch together, and by the end of the day we had a long-written agreement with many action points about how they might work and communicate better with each other going forward. 

It strikes me that Torbay Council could well benefit from a similar mediation agreement. The the situation was described as ‘fractured’ but that everyone was ‘trying to reconcile’ their differences. 

From my experience there is nothing that cannot be successfully mediated as long as everyone is willing to engage in the process, and to some degree potentially compromise. There may have been some confusion over what mediation is. However, I predict within the next couple of years most people will understand it far better. I only hope the Council have sorted out their differences by then.

Ben Tisdall is a former solicitor and now runs www.rivieramediation.co.uk