MEDIATION - A WORTHY ALTERNATIVE

by Maggie Kennedy, Solicitor and Consultant Mediator with Consensus Mediation.

Anyone who has ever faced a dispute, either personally or commercially, will recognize some of these symptoms: indignation, upset, frustration, uncertainty, fear, anger and probably above all, a desire to be vindicated. If not settled very quickly, the issues blur until it is no longer about the money, or whatever, it is about 'the principle'. You convince yourself that you are right, rehearsing your version of the story with colleagues and friends, and begin to see 'the other side' as liars and schemers without mitigation. The 'other side' thinks just the same of you.

Personal disputes like this can rumble on for years often never resolved, spoiling friendships, neighbourliness or working relationships. Business disputes usually quickly involve lawyers, who are not expected to give negative advice or to counsel caution but to WIN! Lever arch files full of letters and notes are produced, witnesses interviewed, and often expert witnesses involved, all to try to prove who did what wrong and when.

If court proceedings start, the result might be favourable, but it is also likely to be expensive, time consuming, and without any guarantee of outcome. What seems to be a 'watertight' case so often sinks like the Titanic, leaving only the debris of disappointment and expense; often even the 'winner' is left with a pyrrhic victory, marred by irrecoverable legal costs and lost time that could have been spent in myriad better ways.

The Essence of Mediation

An increasingly popular alternative is mediation, a form of 'alternative dispute resolution' or 'ADR'. Its growing popularity is explained by its success rates, around 90%, and the fact that a case, however intractable it may seem, can be settled within a day at a fraction of the cost of going to court.

A mediator is an impartial third party whose role is to guide the parties towards their own settlement. A mediator does not impose a decision or attempt to judge the case. The mediator's skills help the parties to move away from trying to demonstrate that they are 'right' to working out how they can resolve the problem. The mediator helps the parties to achieve a settlement by focusing on what is to be done rather than on who is at fault.

The mediator listens, allows the parties to express their feelings, explores underlying issues, challenging and encouraging where necessary. The mediator spends time with each party, both in joint session and in private meetings (sometimes called 'caucus') helping each party to focus on their interests, and the interests of the other parties, rather than their rights. The mediator will explore the early part of the relationship, drawing out what it was that caused them to work together initially, and what caused the breakdown in trust or confidence between the parties. The mediator will help the parties to examine areas of possible agreement as well as disagreement. The mediator will also help each party to examine their own resolve, testing out their belief in the true strength of their own case and their resolve to fight rather than settle. Some of this process can be difficult if not painful for some parties: for this reason, the mediator will never test parties or try to expose weaknesses in a case in joint session, only ever in private.

All the discussions are completely confidential - the mediator will not repeat or imply to another party anything that one party has said unless or until the mediator has been given express permission to do so. This confidentiality allows the parties to trust the mediator so they can discuss openly all aspects of their case. Eventually, by spending time "shuttling" between the parties, the mediator can help the parties to understand their own and each other's positions in a way quite different to that of the traditional adversarial case. The parties will be encouraged to find solutions, thinking positively and creatively and avoiding recrimination.

Confidentiality is of crucial importance in mediation, and should be considered in two distinct but related categories. First is the confidentiality of matters disclosed to the mediator, which relies upon the mediator's professionalism and training. The second and equally crucial aspect is that of the entire process being confidential: the meeting is essentially 'without prejudice' and it is important that all participants understand and respect this. In the event that a settlement is not reached, no party may later use or refer to in evidence anything that they learned from the other party at the mediation, nor should the information be passed on to any other third parties.

The mediation process is voluntary. Anyone may leave at any time if they so wish, and indeed the mediator can terminate the meeting if it really does not appear to be working, although this is very rare. Emotions can run very high and the mediator is tasked with dealing with people who are under considerable pressure. While the parties are at liberty to leave, grand gestures should be avoided unless there is a very real belief that going to trial is a preferable option to the mediation process.

If no agreement is reached the parties are not in any way bound by what has been discussed. The agreement becomes binding once it has been drawn up and signed by the parties: if the agreement is not honoured it may be enforced contractually or preferably by a further mediation. Most agreements are honoured though, precisely because the parties have worked hard to achieve a settlement, and upon terms that were always within their control, unlike an imposed court decision.

Choosing a Mediator

Mediation requires the consent of all the parties concerned, but if one or more have not indicated willingness, it is possible to approach a mediation organisation or individual mediator to help to negotiate that initial agreement. Once the concept has been accepted, there remains the question of the choice of mediator. Many people prefer to choose a mediator who has technical knowledge or experience connected with the dispute. Certainly a knowledge of jargon is useful, but it is not crucial. Received wisdom tells us that it is the mediation skills of the individual that are important, not their technical knowledge. In a dispute regarding mouldy kitchen walls, and faced with a choice between an experienced mediator who knows nothing of ambient humidity and an expert on moisture extraction, whom would you choose? If the expert is ALSO an experienced mediator, choose them, but if not choose the trained mediator every time.

Mediators are not yet regulated in this country, but those who have been accredited by the principal training organizations have undergone intensive specialist training and follow a code of conduct or practice. Solicitor mediators also follow the Law Society's Code of Practice for mediators. Trained mediators will undoubtedly refer to their training body in their credentials, and should carry professional indemnity insurance.

Mediators may be sought through specialist service providers, like Consensus Mediation, or they may operate independently. Most of the principal organizations have a website providing details of their services and individual mediators available.

When choosing a mediator, try to ascertain if the choice of individuals offered is limited in any way, for example to particular panels or training credentials, or if a wider choice is available. Some court schemes, like that of the Central London County Court , provide that each party should put for ward three names for consideration by the other party, and if no agreement is reached the court will make an appointment. If at all possible, it is better try to agree upon a mediator rather than have one nominated.

Having chosen the mediator the parties will usually be required to sign up to a formal Agreement to Mediate, which sets out who is to attend, the identity of the mediator, the agreed fee, and the time and location of the mediation. The document may also refer to the procedure to be adopted, or it may refer to a particular standard procedure.

On the Day

Many people prefer to have their lawyers present, although it is not essential to be represented at the mediation. If the dispute is legally based it is however wise to take some legal advice in advance to clarify your position so that you are better equipped to negotiate.

The mediator will meet and greet the parties, and ensure that they are settled into their own rooms before calling the first joint meeting. The mediator will reiterate the rules, particularly regarding confidentiality, check that representatives have authority to settle the case, and will explain how the day will be structured. Each party will have an opportunity to make an opening statement and the mediator may invite questions. The mediator may allow the parties to continue to talk together if it seems appropriate, or the meeting may be broken up into private meetings.

Mediation usually takes about a day, though the length of the day may vary. Some mediators allow the process to take as long as needed, which may be into the early hours of the morning, whilst others prefer to suggest a time limit. Those who have not experienced mediation before may be concerned at the amount of time that they are left on their own while the mediator is with someone else. There is nothing sinister in this, and it does not suggest that the mediator is partisan. If an agreement is reached it may take time to prepare the document for signature. Many parties become anxious that their hard fought deal may be lost because the lawyers are taking too long over the paperwork, but generally it is better to do it there and then so everyone can leave secure in the knowledge that the deal has been done.

The cost of mediation varies, and as one might expect, is negotiable. Most service providers will ask for a fee per party, per mediation day, which may be reduced overall where there are more than two parties. Very often, the fee reflects the amount in dispute and the seniority of the mediator. Fees vary from a hundred pounds or so per party for domestic disputes, to more than two thousand pounds per party. Some voluntary organizations will provide a service at no charge to the parties. Even taking into account the fees of advisors and experts who might attend the mediation, compared with the likely cost if the case were to continue to trial there is potential for enormous savings in costs. The mediation is also likely to be of benefit in saving both time and anxiety.

If additional facilities are required, such as room hire, then these disbursements will usually be charged at cost. Some service providers have their own accommodation, others hire rooms on an ad hoc basis particularly if they are handling disputes all over the country. Very often one party or their advisors may have accommodation that is suitable which can reduce the costs, but this is marginal and will only be permitted by the mediator if the 'away' party is entirely comfortable with the location. Suitable accommodation, as a minimum, requires private rooms for each party and one room big enough for joint meetings to take place; refreshments and other comfort facilities are also needed.

Conclusion

Mediation or other forms of alternative dispute resolution should not be considered to be 'alternative' in any marginal or cranky sense, and it is a compulsory stage in the court process in many US states. In Australia and Canada mediation is well established in the mainstream. In this country the court now has power to stay court action for the parties to try ADR, and it is likely to become 'compulsory' before too long.

Some solicitors remain wary of the process, perhaps understandably in the light of the many changes that have occurred in the legal system over the last year, and also because it has only recently been taught as a separate subject at the law schools.

Nevertheless, if you do find yourself in dispute, consider mediation. If it is a legal dispute press your lawyer to give you cogent reasons if they are reluctant to recommend it to you: do not be dissuaded by vague indifference which probably suggests that the lawyer is actually unfamiliar with the process rather than genuinely unimpressed. Most people who experience mediation are amazed at the results, especially lawyers.

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