Peace process?
Involved in a mediation for the first time? Don't panic – with careful planning and a good mediator, it can be a win-win situation, says Paul Newman
For many years litigators were able to avoid mediation or ADR. The Centre for Effective Dispute Resolution (CEDR) and other groups have proclaimed their message since the early 1990s, but for the average county court practitioner the emergence of ADR as central to dispute resolution has been slow. Indeed, the position is changing more slowly than some ADR proponents profess.
Many courts now encourage litigants to consider mediation, but much may depend on the enthusiasm of particular judges to promote ADR at case management conferences.
The mediation ethos hovers over the Civil Procedure Rules, although the message is not overt. Courts have powers to direct the parties towards mediation, such as CPR r 26.4. Some courts have developed court annexed mediation schemes which provide the parties with up to three hours' mediation under the court's auspices. Such schemes operate or are about to commence in London, Birmingham, Manchester, Leeds, Exeter, Guildford and Cardiff. Many courts provide helpful 'action' packs, but where there is no information available and the judge invites you to mediate, what happens next?
Everyone knows mediation is flexible. It is a way of encouraging parties to broker their own deal, albeit with the help of a neutral third party. CEDR or ADR Group rules may apply by agreement or as a result of a particular contract clause. However, there is nothing as prescriptive as the Arbitration Act 1996 or the CPR to aid the parties. If you become involved in a mediation, leaving matters to chance is a recipe for disaster. To do nothing in advance of the mediation is to prepare to fail.
Presentation
Presentation of any case at an ADR session requires organisational awareness of what a party wishes to achieve. The approach has much in common with principled negotiations as popularised by Roger Fisher and William Ury in Getting to Yes '“ Negotiating Agreements Without Giving In (Business Books Ltd 1990). The use of principled negotiations involves deciding issues on the merits by some objective standard, rather than by resort to positional bargaining. The latter encourages each side to take a position and hold to it, rather than focus on their underlying concerns and needs. There are four fundamentals for principled negotiations:
- People: separate the people from the problem;
- Interests: focus on interests, not positions;
- Options: generate a variety of possibilities before deciding what to do;
- Criteria: insist that the result be based on some objective standard.
Under the guidance of a good mediator the mediation process allows a form of catharsis to occur. It is a purging of emotions and long held views, where those are untenable. It can promote a realistic understanding by each party of the other's interests. It allows parties to face the truth about themselves.
A good mediator puts parties at their ease, does not overtly take sides, encourages the parties to consider issues and enables them to review their own strengths and weaknesses, rather than dwell on the goodness of their own personalities and the iniquities of the opposition.
The mediator seeks to understand what drives the participants in a dispute, and knows people become emotionally involved. An obvious example is neighbour disputes. Many carry on for years, culminating in a few days in the national press for the combatants. Then readers marvel at the stupidity of others '“ wasting their money on lawyers who argue before judges such lofty issues of principle as a perceived interference with a fence or hedge.
Sometimes, a business will promote a claim largely to redress the balance on what has turned out to be an uneconomic contract (the original price was unrealistic or simply wrong) or to cover later mistakes. The team running the claim is not seeking the revelation of objective truth. To hoodwink the mediator and disclose as little information as possible may become the aim. Good mediators unlock emotions and help parties understand themselves and the other side.
Preparation
For parties who genuinely want to move forward, it is better to adopt a co-operative negotiating strategy at the mediation sessions rather than an aggressive or hectoring tone. Identification of the common ground and shared values provides a platform for progress and is not a sign of weakness. It strikes a positive note and may immediately reduce the areas in dispute.
How do parties prepare for a mediation? If the CEDR, the ADR Group or similar are overseeing the mediation, they will decide the rules in advance, in collaboration with the parties. However, the parties are primarily responsible for several decisions: Who will attend? Will they take their lawyers, or experts? Are they going to provide position papers and a core bundle of documents to the mediator in advance?
Where the court is involved and has passed the case to mediation, pleadings may have concluded, disclosure/ inspection taken place and even witness statements/expert reports produced. In fact, the case is all but ready for trial.
Where the parties are to rely on position papers, these should be meticulously prepared to strike just the right note, contain the appropriate information and have the correct balance of factual and technical content. Flowcharts, diagrams, photographs and plans may all be useful. Do not make position papers longer than absolutely necessary. This is time consuming and calls for precision. Although the format of position papers depends on the nature of the dispute (and may include comments on the law) parties may include the following:
- Introductory remarks and a positive indication that it is the client's wish to work towards settlement;
- A resumé of the facts as the client sees them, but highlighting any agreements or disagreements they believe exist in regard to the particular facts;
- An analysis of liability and quantum.
When the mediator convenes his opening session, he will introduce himself, briefly confirm how he was appointed and indicate to the parties what he hopes to achieve. He will confirm that mediation is a non-binding form of dispute resolution, he is there to facilitate discussions and will avoid evaluation. He will explain how he wishes to conduct the mediation, combining joint sessions with both parties present with individual meetings with each of them, and that the individual sessions are confidential. He will not disclose information he receives during them to the other party unless expressly authorised to do so. The mediator seeks confirmation of who is present on behalf of the parties, how they wish to be addressed (first names or more formally) and that they have the requisite authority to discuss and agree settlement. If the parties have provided written position papers to the mediator in advance, he will indicate that he has read them. He may invite each side to make a short opening statement to highlight their principal points and expectations. He may set a time limit. There is no procedural need for the claimant (in litigation terms) to speak first. Sometimes, the mediator will invite the defendant (as he would be in litigation) to open.
Statements
Statements should be as neutral as possible, setting out the issues and drawing attention to the facts, interpretation and conclusion as each side sees them. Lawyer and client may have practised this statement before the formal mediation session, particularly if client representatives of sufficient authority, experience and detachment from the dispute can be used as independent critics. Clients may want their lawyer to address the mediator on their behalf, or have separate presentations from lawyer and client representatives.
Some mediators try to sideline lawyers at this stage. In making oral submissions it is essential to be realistic, honest and seemingly objective. Although it is legitimate under the adversarial system for a litigator to present a case in the most favourable way by emphasising strengths and ignoring weaknesses, this is unacceptable in mediation.
Oral submissions should avoid specific settlement figures, not emphasise what are considered to be deal breakers and avoid, at all costs, emotive language. It would be futile to commence a mediation session with the statement 'I'll settle for £50,000 and not a penny less'. The other party, instead of listening to the facts of the case as the first party perceives them, will simply spend the rest of the time taken to deliver the statement thinking up possible reasons why there is no entitlement to £50,000.
Once the mediator starts the private sessions with the parties, he will seek to engage their sympathy and show a clear understanding of their case. He will proceed from open questions to ones which challenge the parties. He cannot show scepticism or accuse a party of being untruthful. He might say: 'Of course, the other side might say'¦ How would you react to that?' If the lawyer is present, he might raise a legal issue with him: 'You are an experienced litigator, how do you think a court would deal with causation in this instance?'
The most difficult area for mediators is the use of experts. Often, mediators try to put the expert evidence to one side. It is often desirable to make the parties realise there is some semblance of liability and the real dispute is about quantum.
The mediator must remain aware that the parties do not wish to be coaxed into a comprised settlement. Mediation is not simply about splitting the difference. It is all about trying to achieve win-win situations. However, it would be wrong to conclude mediators merely play the role of a limp, wet sponge. They must impose their personality on the process without antagonising the parties.
On occasions, a party will ask them a direct question '“ a lawyer mediator may be asked how he thinks a particular party would do in court. He will answer with care, not seeking to bolster the party's self-belief. Some commentators, particularly in the US, debate the extent to which a mediator can be evaluative as opposed to merely facilitative (Using Evaluations in Mediation, Dwight Golann and Marjorie Corman Aaron, Dispute Resolution Journal Spring 1997, pp 26-33). American training videos in which the mediator almost seizes the parties by the scruff of the neck, and denounces their stupidity and wilful blindness to reality are infamous. Most UK mediators do not go that far.
Mediators hope a combination of joint sessions and individual meetings will help the problems melt away and make settlement a possibility. However, the process can be lengthy. If the mediator spends a disproportionate amount of time with one party, the other party may wonder, in its retiring room, what is going on. For that reason a mediator likes to give parties a task to carry out when he is with the other side.
Anecdotal evidence suggests many mediations settle at the very end of the allotted time, when pressure increases. Parties have spent a lot of money and do not want to come back another day or admit defeat. For some it leaves a nasty taste in the mouth.