THOUGHTS ON MEDIATION

ARTICLE

THOUGHTS ON MEDIATION

PART 1: GETTING TO THE MEDIATION DAY

This article is based on the writer’s own experiences and thoughts arising out of a combination of practicing as a mediator for over 15 years and a litigator for depressingly longer than that. Doubtless some readers will have their own views on what follows based on personal experience and their own sphere of practice, particularly those engaged in matrimonial law. However it is hoped that this may be of some interest and use to practitioners, offering as it does views from both sides of mediation practice.

The article comes in two parts. This first part covers the steps leading up to attending a mediation, and the second part will cover the mediation day itself.

When to mediate

Whilst there can be no doubt that the use of Protocols and other pre-action requirements have emphasised the value of early ADR (in particular mediation) this is not as clear cut an issue as might first appear. There can be no doubt that successful early mediation affords a considerable saving in client time, stress, and costs, but it is unlikely that it will succeed in a vacuum: that is, a situation where either or both parties feel that there is a lacuna in their knowledge of their own and/or the opponent’s case. Prominent reasons for that usually include an unparticularised claim or counterclaim being alluded to, the absence of critical documentation, and the absence of expert evidence.

What is clear is that the parties should mediate as soon as they reasonably can (bearing in mind of course that a mediation is not a trial, and therefore does not require the same extent of preparation and particularity). It is seldom the case that an unsuccessful mediation is a complete waste of time and money, as it affords a valuable opportunity to probe the case of the other party. For example, an inability to answer reasonable requests for information might speak volumes as to a party’s ability or resolve to see its own case through to trial, might facilitate effective post-mediation ADR (many cases settle soon after an unsuccessful mediation day), and should certainly assist in any subsequent placing of a Part 36 offer.

The debate continues to wax and wain as to the benefits of compulsory mediation, and there are valid arguments both ways. However it may be said that a preponderance of appellate decisions concern parties with deep pockets, and where an unsuccessful mediation does not have the same impact on the litigation budget as it does with those of more modest means. In addition the fundamental starting point in voluntary mediation is the fact that, despite all that has gone before, the parties have now consented to come together in an attempt to resolve their differences: a powerful starting point. There is a material risk of the process being diminished by real cynicism where parties are forced to mediate against their will. Understandably the mediation profession itself relishes compulsory mediation as leading to a material uptick in work.

Being the first to propose mediation should never be regarded as a sign of weakness. It can and should be projected as confidence in a client’s case such as to invite the other party to meet and explain their own case.

Choosing the mediator

The extraordinary efforts that some party representatives go in belabouring their own preferred mediator, at not inconsiderable cost to the client in terms of delay and money, never cease to depress. It is unlikely that client will be aware of the expensive and futile debate being advanced on their behalf.

An alternative approach is that in the absence of an early consensus as to who to appoint, simply agree to the proposal of the other side. Provided that the suggested mediator is accredited with a Civil Mediation Council recognised training body and registered, is familiar with the subject matter of the dispute, has the requisite experience, and is not the subject of adverse comment from colleagues and associates, there is no material reason why that should not be done. Reasons for not agreeing to a proposed mediator almost inevitably stem from common sense. Personal experience for the emphatic rejection of a proposed mediator include a recently retired (and wholly unaccredited) Costs Judge who sought to command a fee of £9,000 in a solicitors’ breach of contract/costs case, and in an involved director’s misfeasance case a (again wholly unaccredited) mediator who had all the indications of being a close friend or associate of the errant director.

Whether the mediation should be in person or virtual

There can be little doubt but that the use of virtual mediation was advanced by the pandemic and that it is here to stay. The experience of mediators tends to be that there is little material difference in success rates between virtual and in person mediations, but it is down to the party representatives to advise as to which is suitable in the circumstances. Virtual mediation is often preferred by commercial clients (in particular insurers) where the inevitable downtime of a conventional mediation day is avoided, and they are free to carry on with other work. In person may be preferred where one or more of the attendees is not comfortable with the technology, or there is the need for face to face interaction.

Mediation documentation

Mediators are not enamoured to receive the result of a blanket photocopying exercise (sometimes in duplicate), in particular the historical chaff between the parties as the case progressed (‘please reply to our email of X’). It can indicate failings in case management on the part of a representative, and always puts the mediator to wasted time in having to pare out duplicate and/or immaterial communications before being able to identify the material issues between the parties.

It is therefore suggested that the parties should work together to produce:

1. An agreed statement of facts: this should be wholly uncontroversial, brief, and aimed at getting the mediator up to speed on the core issues and current position in the dispute.

2. An agreed bundle: this need not be a thing of beauty, and should only contain key documents and items of correspondence: for example material Protocol letters and any previous offers. If complete agreement cannot be reached (it seldom is) then the parties are always free to supplement the bundle with other items (sometimes for the mediator’s eyes only).

3. Separately, their position statements. These are not skeleton arguments as for a trial or appeal, should never or rarely be more than 10 pages in length, and should be pitched at getting the mediator and the other party to understand what they regard as relevant and what they regard is needed.

Prior to the mediation day

A mediator should always contact the parties, usually by way of their representatives, prior to the mediation day to ascertain the extent to which the parties and/or their representatives are familiar with the mediation process, and in particular whether there are any particular sensitivities. It is always good practice to again give the assurance that anything that passes in that conversation is confidential. In particularly large and complex cases there can even be premediation meetings aimed at ensuring that progress on the day is as swift as possible.

Of particular importance is confirmation:

1. That the party concerned has been advised as to the nature and content of the mediation agreement and will be prepared to sign it.

2. That the party concerned does have authority to enter into a settlement agreement or (frequently the case when dealing with insurers or large companies and there is a limit on the authority) has access to others who are able to confirm such authority.

3. Of the identity of those attending the mediation and that they will sign and be bound by the confidentiality provision.

4. Of the arrangements made for refreshments, and whether there are any material time or other restraints.

As mentioned above the second part of this article will look at the dynamics of the mediation day itself.

Peter McLoughlin

Peter McLoughlin is an experienced solicitor mediator, accredited with both CEDR and CIArb and is a member of a number of panels.