The use of mediation continues to grow at pace in Scotland, but one of the movement’s biggest influencers in the UK, Michael Leathes, says that Scotland could be poised to make the most of that period of growth in England over the last 15 years. Richard Draycott meets the man who has just joined forces with Edinburgh’s Core Mediation.

Michael Leathes, who has recently joined Edinburgh’s Core Mediation as a consultant, is a reformed man, and the former General Counsel for blue chips Pfiser and International Distillers & Vintners was recently in Edinburgh to spread word of his gospel.
“For the first half of my career I was litigating for all I was worth,” says Leathes when we meet in the Rutland Square offices of Core Mediation on a damp Monday evening. “I was actually very fond of saying to people ‘if it moves sue it; if it doesn’t move then kick it so it moves, and then sue it’. I was in charge of some very large litigations in the pharmaceutical industry and handled thousands of cases around the world, and I would say that I used to actually relish the idea of suing somebody.”
However, in the mid-Eighties Leathes, who recently retired as head of intellectual property at cigarette giant British American Tobacco, was re-born: “I finally matured in 1986. That coincided with me reading the book Getting to Yes by Roger Fisher and William Uri. At the time I was working for a pharmaceutical company in the USA and that book suddenly made me realise that I might actually be losing about as many cases as I was winning. To me that was not good. Getting to Yes also made me realise that through negotiation I could more than likely achieve better outcomes for my company.”
That was really Leathes’s introduction to the mediation process that has steadily been collecting disciples across the UK for the last 15 years. On finishing Getting to Yes, Leathes launched an amnesty in the pharmaceutical press to infringers of one of company’s patents. This led to Leathes settling many patent infringement cases he had going at that time and finally cemented his belief that better, faster and more effective outcomes can be reached through a process of negotiation.
Seldom, if ever, will you see the opposition parties of a litigation case pop champagne corks together to celebrate the outcome. Litigation always leads to a winner, who may indeed celebrate, and a loser, who will most definitely not. Part of Leathes’s transition towards mediation and away from litigation was reassessing what his perception of a ‘win’ actually was in both a legal and business context.
He says: “I think a win is an acceptable outcome. Winning, for me, is not automatically the other side losing or being financially damaged in some way. Of course there are cases where litigation is unavoidable, but actually I think they are in the minority. Provided that what I get for my company is what I need and it is acceptable then I now regard that as a win. It does not upset me if the other side feel that they scored a win too.”
Like many lawyers and the plethora of mediation consultants that have sprung up around this growing phenomenon, Leathes has watched over the last 15 years as more former litigators have seen the same light that he saw. However, he feels that Scotland now has an opportunity to take full advantage of what has been happening in mediation during recent years.
He says: “In the UK, broadly speaking, there is a lot of interest in mediation and that has been built up by a few people working very hard. However it has perhaps reached a point now and it may not continue to develop as quickly as it has in the last 15 years. That said, I think Scotland is still on the up and there is a lot of room and scope for growth. The situation is slightly different in England and Scotland. In England mediation has been judicially driven. It has had a good growth rate but that growth rate has now stopped and there may be zero growth in the future. There is no one reason for that as I can see. I do not think that in England mediation has been fully researched to identify the cases where mediation could make a significant difference.
“The presence of a neutral negotiator in a room changes the whole dynamic of a negotiation. Most people have not been trained in the art of negotiation and tend to see a mediator as taking over the negotiation, but that does not happen. The mediator enables them to manage the negotiation process, while leaving all the control over the outcome and all the substantive decisions to the parties.”
John Sturrock, founder of Core Mediation agrees that now is the time for Scotland to make the most of its advantageous position, which sees consumer demand driving the growth of mediation. He says: “We have a great opportunity to learn from what has happened with mediation elsewhere in the world. We have the opportunity to do really tangible research and to gain a much better understanding of what mediation can achieve in many different situations. We can stand on the shoulders of giants and learn what has and has not worked.”
Looking to the future, Sturrock and Leathes see the mediation process not simply remaining as a dispute resolution tool, but as a process that can even be introduced before any dispute has arisen. There are many emotionally charged situations in political and commercial life that could indeed benefit from an impartial negotiator being involved, such as redundancy issues, relocation of resources, the introduction of wind farms to name very few.
Leathes says: “When I have used a mediator I have usually reached a better quality outcome. The quality of the agreement has been much better and I find I have expended far less energy, time and stress during the process. These three things are big positives of mediation. I also never come away from a meeting about mediation without learning something new. You always come away with ideas or angles that are creative, that I can then take and apply myself in other circumstances. These are simply tools and my tool box is always open.”