Martyn Day considers the power of mediation in international claims, and how it can bring governments and companies to the table

Over the last ten years mediation has grown steadily in the UK as a tool for resolving conflicts and bringing about settlements in litigation.

My firm, Leigh Day and Co, has been involved in ground-breaking international claims against British companies and government departments, and is widely seen as the UK leader in such cases.

Dubious at first

I started as a mediation sceptic but after seeing first hand how it works, I am now a convert to its benefits.

With our international work, particularly in the developing world, I see many benefits in the idea of an international mediation and arbitration centre for the resolution of conflicts involving local communities and multi-national companies.

A clear case of the benefits of mediation is that of the family of Baha Mousa (the Iraqi tortured and murdered by British soldiers in Basra) and eight other Iraqis tortured alongside him. My firm acted in a claim against the Ministry of Defence in which it was soon agreed that mediation was the best way forward. The former Lord Chief Justice, Lord Woolf, was appointed as the mediator.

When the claimants arrived in London in May 2008, they were a despondent group; four and a half years of misery, resentment and anger had made them bitter men.

At the start of the mediation. Brigadier General Viggers, one of the Army’s most senior Generals, read out a personalised apology to each of the men.

He made clear his disgust and outrage at what had happened. It was as if a weight was lifted from the Iraqis’ shoulders.

We hammered out a good deal, enabling the claimants to start their lives again. However, it was the Brigadier General’s words that really changed our clients’ outlook.

Money not everything

In such situations, it is often the feeling of injustice, and the lack of recognition of that injustice, which drives people to seek compensation. The money is always useful but usually is of secondary importance.

The mediation enabled these men to participate in the negotiations but it also produced the crucial apology. If the case had gone to trial, it is highly unlikely we would have achieved as positive an outcome.

Most litigants, even if successful, emerge from cross-examination feeling sullied, and a court could not have brought about the apology.

All mediations involve an element of compromise, and it is always possible that agreement may not be reached; but with goodwill, and a good mediator, that is unusual.

As a process that empowers claimants, and ensures they are fully involved, a mediation beats a court trial hands down.

Time for an international system

I am convinced that an international mediation system, perhaps combined with arbitration, would be of great benefit in claims of this kind.

For the vast majority of situations where individuals have claims against foreign governments or MNCs, there is no such scheme in place.

And where MNCs are involved in a developing country, they all too often play down disputes. Even typically responsible companies like BP can turn a blind eye to the claims of the poor and dispossessed.

We represent poor farmers from the north of Colombia in claims against BP resulting from the laying of a pipeline.

The farmers claim that the construction in the late 1990s caused devastation to their farms, forcing many of them to move to the poorest of circumstances in local towns.

They lodged claims with BP almost immediately after the pipeline was laid, but despite many years of battling the farmers felt fobbed off.

It was only when they came to us that BP started to take it seriously, resolving the first group of cases at a mediation in Bogota in 2006, while the second group is now going through the British courts.

For companies like BP, admitting that mistakes were made and that local people were disadvantaged by their actions often cuts across their instincts.

They usually try first to bury the claims, and, if that fails, they assume that there is no alternative to a drawn-out court case and the poor PR that often results.

That is why it seems to me that an international mediation and arbitration centre would work.

If such a centre existed, companies like BP and claimants like the Colombian farmers could refer grievances to it.

This could result in a swifter, less acrimonious resolution not least because the process would be much less adversarial. That would benefit both sides.

This could well mean that I end up out of a job, but that is a price I would happily pay if it meant claimants like the Colombian farmers would get swift access not only to justice but justice within which they had played a full role. Roll on that day!

Martyn Day is a senior partner at Leigh Day & Co. http://www.leighday.co.uk