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The mediation process: what, when and where?

by Matthew Rushton on 02 Dec 2016

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The mediation process presents an opportunity to engineer a more favourable settlement than might be achievable through the courts. As an alternative, it offers swift resolution of a dispute and the return to a productive working relationship. 

Mediation is about finding an intelligent, pragmatic and commercial basis for resolving a dispute above and beyond the minutiae of legal argument. If, during a mediation, the "right" legal answer is found, that should be seen as a fortunate by-product, and not the object of the exercise.

So, how should you conduct the mediation process

What to mediate

The consensus among mediators is that almost all disputes are mediatable. Recent successes in areas such as civil fraud, where previously mediation was thought inappropriate, are testament to the flexibility and robustness of the process. However, even mediation's strongest proponents are prepared to accept that litigation is necessary to resolve pure legal questions or matters of public policy. 

The characteristics of a dispute that is classically suited to mediation are said to include some or all of the following: 

  • A moderate level of conflict
  • A continuing relationship between the parties
  • A preference for privacy; and cases where the dispute is broader than can be defined in legal terms

Realistically, solicitors concede that they look more favourably upon mediation if they believe their case may fail in court. In that scenario, mediation may offer not just the opportunity to climb down gracefully, but the prospect of negotiating a settlement of greater value than a court judgment. 

When to mediate

Given the success of mediation across all manner of disputes, identifying that a dispute is suitable for the process is straightforward: there must be clear and pressing reasons for unsuitability - otherwise, the focus should be on when it would be tactically advantageous to call a mediation.

Mediators have noted a trend in mediations taking place earlier and earlier. Significant cost savings can be achieved in doing so and contracts often have clauses that require mediation prior to arbitration or litigation. Mediators, however, have noted that it is seldom worth trying to mediate unless parties feel the points in issue are sufficiently articulated.

Some mediators are adopting techniques to circumvent this issue. It is worth considering the benefits of a fuller exchange of position papers, making it more like pleadings, and leaving scope for the other side to reply. Starting a process whereby some minor discovery takes place may also be worthwhile. 

With mediations becoming more common in complex disputes, limiting mediation to a single day can be detrimental to achieving a result. Often, it's the case that two days or more would be more appropriate, even if ultimately all the allotted time is not required. It is usually easier for parties with long distances to travel to go home early than it is to find a date convenient for all parties to reconvene.

At the same time as mediations have become more complex, anecdotal evidence suggests that the proportion of cases that reach settlement on the day has fallen sharply. There are a number of theories as to why this might be the case. One suggests that in the light of various court decisions in recent years, lawyers who have been culturally opposed to mediation now find themselves forced into the process as part of their professional obligation to the client. Previously only trailblazers, innovators, or those naturally sympathetic to mediation got involved. A wider, and generally less sympathetic cross-section of lawyers, the theory goes, makes it more difficult to bring cases to a close 

Another theory suggests lawyers are increasingly using mediation as part of a wider process. Cases that don't settle on the day often do so a week or so later. Where appropriate, lawyers are deliberately deciding to end the mediation unsuccessfully because they feel a more advantageous settlement will be achieved when the opposing side has had more time to think. And often this is preferable to working on into the night. In support of this theory, mediators have observed in family-law mediations, which take place for a couple of hours every two or so weeks, that the shift in position comes between meetings: people think differently about offers once they've had time to reflect on them.

Mediation in the UK has been geared towards a one or two-day intense battle. Until now, it's a model that has proved very successful, but the mere fact that outcomes can be achieved, does not necessarily mean other models might be more appropriate.

Where to mediate 

Mediations are usually arranged, for obvious reasons, on neutral territory. Neutrality, however, comes in many shades, and parties should be alive to potential pitfalls and advantages associated with the choice of location. The natural tendency of course is to stay close to home, drawing on the psychological advantages of familiarity with the surroundings, language and culture. There may be certain instances, however, when it can be advantageous to forego these comforts and negotiate in hostile territory. It all really depends on the particulars of the mediation.

Techniques for getting the best out of the mediation process are as diverse as the characters involved. Negotiation remains an intuitive art - there is no defined rulebook. However, the answers to the questions "what?", "when?" and "where?" can provide a good starting point. 

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Topics: ADR, Mediation

Matthew Rushton

Written by Matthew Rushton