Pillar of strength

One of the principal pillars upon which the Civil Procedure Rules are based is the early and effective resolution of disputes, rather than relentlessly pursuing matters to trial. It is therefore with some sadness that I read of the death of David Shapiro last year. David was an American qualified lawyer who came to England in 1996 and worked as a consultant at the City firm of SJ Berwin. He is credited with introducing the mediation regime to this country. He is reputed as having achieved this following a series of meetings with Lord Woolf in which he extolled the virtues of mediation as a process. It is down to him that mediation is focused on so heavily in the CPR, and has formed such an important limb of the Jackson report.

Mediation is faster, more efficient and significantly cheaper than litigating if used properly and as a genuine attempt to settle. As Sir Rupert Jackson points out, there is no point in parties engaging in mediation as a mini trial as this will not be effective.

The unique feature of mediation is the fact that it is chaired by a specially trained, independent third party mediator. The mediator can reality test, but he cannot advise the parties on a settlement. He is also incapable of making any binding decision. The decisions are solely down to the parties, and a binding agreement will only be reached with the agreement of the parties.

These are a few helpful hints from both my own experience as an adviser at mediation and from the experience of others.

Mediate at the right time

It is not sensible to mediate too early, when either issues of liability or quantum are yet to crystallise. That said, it does not make a great deal of sense to mediate too late, as parties would have spent significant legal costs by that stage and their views on the merits of their own cases are likely to have become entrenched. This could lead to a mediation becoming a mini trial. An appropriate time to mediate in any case is on the close of pleadings. By this time, the parties will know enough about their own cases to be aware of the issues but will not have spent money on dealing with major steps in the litigation. They will, however, have done significant pre-action preparation so should know their cases well.

Plan and prepare your documents

It is likely that a mediation bundle will be required. The bundle should be shorter than a trial bundle, in that it will include only the pleadings and core documents. The inclusion of peripheral material will simply make the mediator's life more difficult when preparing for the mediation. A solicitor also needs to consider carefully whether or not a mediation statement is required. My view is that a mediation statement is probably only required if it adds something over and above the pleadings. On that basis, I very rarely file a joint mediation statement as I cannot see that they add anything to the process. However, I will often file a confidential position statement with my bundle, which will indicate to the mediator my own client's hopes and expectations for the mediation (sometimes including top and bottom figures).

Contact the mediator

Ensure that you speak to the mediator prior to the mediation. In this initial conversation with the mediator '“ which will be confidential '“ you have an opportunity to highlight what you hope the outcome of the mediation will be. Any good mediator will contact you in the run up to the mediation in any case.

Prepare your client

Discuss with your client what their top and bottom figures are, and what their hopes and ambitions are in terms of the outcome of the mediation. It is also important to decide when preparing your client whether they should say something during opening statements, as the most effective opening statements can be from lay clients. However, it is important that whoever makes the opening statements rehearses in some detail what they are saying. A lengthy emotional diatribe is going to help no one.

Prepare yourself

The same level of preparation should go into mediation as you would commit to a complex application for summary judgment, or a one-day fast-track trial. It is important to anticipate the issues that will come up during the day and how you will deal with them.

Decide who else attends

It is important to decide who else attends, such as experts, witnesses or counsel.

Sometimes having such people in attendance can assist, but significant numbers of people can hinder the mediation process. If you are going to use counsel, it is probably sensible to use someone that you have had at mediation previously, and whose approach to mediation you are well aware of.

Prepare yourself and your client for some downtime

The mediator will have to split himself between both camps, and as such you will probably spend at least half the day doing nothing. Clients can be unprepared for the extent of downtime that occurs during a mediation.

The benefits of mediation are clear. It is the only time other than trial that the parties will meet, and it's the only time in the whole process where they won't have the pressure of presenting their case to a judge with the risk of an adverse outcome to worry about. It is very effective as the majority of mediations settle either at mediation or immediately after. This is probably because the parties get to test their own positions, and get to understand more about each others cases. Mediation is now common in litigation and it will no doubt stand as a lasting memorial to David Shapiro and his efforts in 1996.

Copyright & permissions