Bonsai and mediation

I can almost hear the thoughts: ‘what on Earth can the ancient art of cultivating Bonsai have to do with mediation?’  There are a surprising number of similarities.

In essence, a Bonsai is like any other tree of its own kind, what makes them special is that they are carefully controlled, and sculpted, into the desired design.  Were they to be left in the ground, unbound and unchecked they would grow uncontrollably just like any other tree.  Their roots would spread, their branches grow and their trunks become thick; they would become part of the landscape, entrenched, and difficult to move. 

Legal disputes are the same, left unchecked and uncontrolled they grow and before you know it they have become unwieldy, costly and the parties have become entrenched in their positions unable, or at least unwilling to move. Just like a large, developed tree, once litigation begins and a dispute is in court, the parties have very little control over how to shape events.

When parties choose to mediate a dispute, rather than taking it to court, they retain significant control over the outcome, and when undertaken early enough in a dispute each side is less likely to have adopted an entrenched position that is too difficult to shift.

Just like shaping a bonsai, it is all about knowing what you want to achieve, being adaptable to things you cannot change and patient to see it through to a better outcome for all.  Whilst there is rarely a wrong time to mediate, there is an ideal time – normally at a stage where sufficient information is known by both parties and their lawyers to understand the situation and preferably before full disclosure, where costs begin to rise more steeply. 

Agreeing, or even offering, to mediate is not a sign of weakness nor is it an indication that you feel your case is without merit.  It is a mature approach to problem-solving where the mediator, as a neutral third party, can assist each side to see their dispute without an excessively emotional lens and to find a solution that is acceptable to both parties.

In English law, parties will not be forced into mediation, though the courts actively encourage its consideration and are willing to punish parties for unreasonably refusing to seek alternatives to litigation.  If you do not pursue mediation you must be ready to justify that to the court, and you must be alive to the reality that, like an unchecked Bonsai, the dispute will grow, become unsightly and potentially cost you more in the end.

John-Paul is an accredited civil-commercial mediator registered with the civil mediation council. For more information about mediation follow the link here or contact him directly to discuss your dispute.