oct ewj 24 online - Flipbook - Page 22
Thoughts on Mediation:
Preparing for 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.
significance of mediation both pre- and post-action. It
is clear that mediation is only travelling in one direction.
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.
Choosing a 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.
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.
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.
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.
The debate that previously waxed and waned as to
whether or not mediation should be compulsory has
now largely been overtaken by events by two recent
developments. Firstly, the impact of the unanimous
Court of Appeal decision in Churchil v. Merthyr Tydfil
Borough Council ([2023] EWCA Civ 1416, ‘Churchill’),
which held that it is within a court’s case management
powers to order that the parties mediate. Secondly,
and on the back of Churchill, the forthcoming
amendments to the CPR in order to enhance the
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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.
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