"Many have been taught to think that moderation, in a case like this, is a sort of treason"
– Edmund Burke
Never was a quote so apt to describe not only lawyers' reactions to mediation when it was first introduced as a potential step in litigation but also those of clients whose first question when you suggested it would, almost invariably, be: "Won't it be seen as a sign of weakness?"
It was the so-called Woolf reforms in 1999 that first insinuated "mediation" into the vocabulary of UK lawyers (the Americans had talked about it for a while but it was largely regarded here as new-fangled and "foreign"). Under the new rules lawyers were required to confirm to the court on a case management questionnaire that the option of mediation had been discussed with their clients. To begin with most litigators ticked the box and then forgot all about mediation, but now it is rarely ignored and generally that is a development to be welcomed.
Is mediation always appropriate?
Nowadays there will rarely be a case that is not a suitable candidate for mediation or where the parties would decline to mediate. Indeed, whilst mediation is not yet a compulsory step in litigation, there can be stringent penalties particularly in relation to costs if a party can be shown to have unreasonably refused the offer to mediate.
What does mediation involve?
Mediation involves the parties choosing their own process, which means that, although most mediation will follow a similar pattern, it can be infinitely flexible. It is a confidential process and "without prejudice", so it is an opportunity to have your say away from the public forum of a court room and in a way that allows you to explore settlement without being bound irrevocably to that position.
Mediation is generally presided over by a neutral person who assists the parties to work towards a negotiated settlement. That person is not a judge so will not give an opinion on the merits but, done well, a good mediator can really test the parties' positions and assist settlement by highlighting strengths and weaknesses.
However, the decision to settle is made by the parties. They cannot be forced to settle and will only settle if the terms of that settlement have been agreed.
That is why it is always important to have someone empowered to make a final decision on settlement attending the mediation. There is nothing more frustrating than reaching a deal in principle but then having to adjourn because the decision has to be referred back to someone who is not present. Often in such cases, the impetus towards settlement is lost as a result of the delay and the mediation is unsuccessful.
What are the advantages of mediation?
The advantages of mediation are that it can be held at any point in the proceedings – although usually the sooner the better in view of the saving in legal costs that can be achieved by an early settlement. It is cheaper than a formal process through the court or arbitrator and is very flexible so can allow matters to be brought into a settlement (such as a commercial deal) that could not be achieved by court action. Because mediation is less adversarial it is often a better option if the parties are keen to retain an ongoing commercial or other relationship.
Statistics from CEDR Solve, one of the country's leading mediation providers, show that 70% of disputes referred to them result in settlement and our experience of mediation is about the same. Often if a dispute is not settled at mediation it will be settled shortly afterwards as the process of mediation has focused minds or narrowed the gap between the parties' expectations.
Although it is flexible and informal, my experience is that you get the most out of mediation the better prepared you are. That does not mean pages and pages of material for the mediator but it does mean:
- Having a good grip on your case and knowing how it can be proved
- Having a realistic assessment of the prospects of success at trial
- Knowing, and sticking to, a top and bottom line
- Commit to the process: mediation usually only takes a day at most and, while it may seem a big time commitment, it is in fact very little compared to the time of dealing with court proceedings
- Make sure the key decision makers are either present or readily available