It might sound curious for someone who spends a lot of their working life in court to say, but barrister Heather Breeze would prefer many of her clients not resort to litigation.
“Mediation has to be the gold standard,” says Breeze, who has spent more than 25 years working as a litigator and as a barrister in England and Australia.
As a barrister, Breeze is well known for helping clients with complex parenting and financial matters. She also has extensive experience in alternative dispute resolution, helping companies in international arbitration and mediating conflicts between families and companies.
When disputing parties are looking for a way to resolve their differences, it’s always better to try to collaborate rather than fight, Breeze believes. And litigation is all about fighting. In alternative dispute resolution methods, on the other hand, the goal is for opposing parties to meet in the middle — or at least try.
The most common forms of alternative dispute resolution are arbitration and mediation, which for decades have been common in international corporate dispute resolution but are now increasingly available to people with other types of disputes, such as parenting and property disputes in separating families, disputes over wills, employment law, and business-to-consumer conflicts.
There’s Always a Better Alternative, Says Heather Breeze
“Corporate fighting is counterproductive. There’s always a better alternative,” says Heather Breeze. “Litigation is counterproductive. That might not be a new idea — it’s something that many lawyers have always understood. But it’s worth remembering, especially when there are better alternatives.”
Much like litigation, arbitration is when two parties agree to follow the decision of a third-party arbitrator, while mediation is when opposing parties are assisted by an impartial third-party mediator to resolve their conflict. Mediation differs from arbitration in that even though mediation is structured, the parties are encouraged to actively participate in the decision-making.
Heather Breeze says she’s done “dozens upon dozens” of client representations in arbitrations as the legal representative of the client, and this experience has led her to the conclusion that while arbitration is often better for clients than court-based litigation, it still has its shortcomings.
Arbitration Is Still Adversarial, Says Heather Breeze
In arbitration, she explains, “You still have the adversarial process” that you have in court. “You hire your own conference room and turn it into a courtroom. Everybody gets terribly formal. But at the end of the day, it’s not a court. So, there’s far more opportunity to settle.”
Parties can tell the arbitrator that they’ve come to a point, after hearing all the evidence, that they want to step outside and come to an agreement and can take as long as they want to reach that agreement, Breeze continues, whereas a judge in litigation may give parties only a very limited opportunity to negotiate. A judge may say, and justly so “You’re on the court’s time and I’ve got five other matters, so I’ll give you five minutes to talk outside.”
Courts must work in this way because if they let every case “just wander outside to see if they can sort it out,” observes Heather Breeze, “the whole system would collapse.” She describes arbitration as akin to the litigation process but with “a little bit more control over the judge because you’re paying for them.”
Mediation, on the other hand, is completely different, says Heather Breeze.
“Everything is confidential. That’s the most important thing,” says Breeze. “Nothing that’s said in the mediation can be used in any court.”
Breeze always requests that all documentation related to the mediation process is destroyed after mediation so people can be completely frank whilst negotiating.
For Heather Breeze, the wonderful thing about mediation, as a mediator, is that she has the opportunity to have one-on-one consultations with the parties before the mediation process starts.
This is a distinct difference, says Breeze, when compared to representing someone as a barrister in litigation.
Where Heather Breeze Sees Litigation Fall Down
Litigation is an entirely different game than mediation, with rules and protocols that can often lead to outcomes that no one is happy with, thinks Heather Breeze.
“Clients understand that everything they say to me is in a complete vault,” says Breeze, explaining that mediators and their clients have a genuine relationship of trust compared to the more constricted version of the client-barrister relationship in the throes of litigation.
When a client engages a barrister to represent them in a civil matter, they enjoy attorney-client privilege. But because the barrister is working within the framework of representing the client in a court of law, the barrister is often restricted by what the client can tell them, and what they can say on their client’s behalf when speaking to a judge, jury, or opposing counsel.
In mediation, however, Breeze says the barrister/mediator can actually hear what the party wants in their own voice, compared to the way it is expressed in pleadings for a court process. “Often they are very different things, because in mediation there’s no constraints. There’s no client saying, ‘Look, I really want X.’ And then their lawyer says, ‘Well, look, I know you really want that, but if we just say that, you might not get it. So, what you need to ask for is Y in order to get X.’”
The point, says Heather Breeze, is that because of the way the litigation process works, giving the right advice is often a matter of telling the client they won’t actually get what they want.
Breeze says that by comparison, “Mediation is a wholly different process. While arbitration is a shortcut around the real cut and thrust of a courtroom — and the courtroom is a genuinely unpleasant place for a litigant to be in — mediation is the gold standard.”