Placing the spotlight on commercial mediation

With the highly anticipated judgment in Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416 handed down in late November and the TV drama Mr Bates v The Post Office airing in the new year, commercial mediation is having a rare moment in the spotlight. This is excellent news for those of us who believe that public awareness of mediation is far too low.

Raising awareness

Love it or loathe it, you cannot deny that mediation is an important part of the civil justice system and ought to be understood more widely. Personally, I would like to see business owners and senior executives considering mediation as standard, from the very early stages of a dispute, as a valuable tool to save costs and manage risk.

In contrast to the option to issue a claim at court, in my experience, mediation is a fairly unknown quantity outside of the legal world. There has been more than one occasion when I know someone was imagining me sitting cross-legged with my eyes closed when I mentioned that I am a mediator! Even within the commercial sphere, it is usually lawyers who raise it, rather than clients.

I was, therefore, delighted that the many millions of people tuning in to Mr Bates v The Post Office would be introduced to mediation as a concept and perhaps begin to develop an understanding of the potential benefits.

However, while the show served as an initial introduction to commercial mediation for many, I fear that the lasting impression was less than favourable. It was portrayed as a futile exercise and a way for powerful organisations to further assert their dominance.

In the show, we saw what was referred to as a ‘mediation hearing’, where an unrepresented individual was faced with a large panel representing The Post Office, who were not prepared to listen to anything she had to say and remarkably, there was no mediator in sight.

The role of the mediator

The mediator’s role is paramount to a successful mediation. Of course, I know that TV dramas are made to entertain, rather than educate and they often deviate from reality. However, it was surprising to see a mediation scene without a mediator. I have seen many entertaining, yet unrealistic, courtroom scenes over the years, but I am fairly sure there was always a judge.

I have no first-hand knowledge of what went on in the mediation depicted, but I would like to think that a mediator was present, fulfilling his or her crucial role as an impartial third party, facilitating the conversation and potentially suggesting moving the parties to separate rooms to diffuse tension.

In my experience, having spent a lot of time with mediators from around the world, I have never heard of a mediation that involves a hearing. While the mediation process varies from country to country, with Europeans conducting most of it in group sessions, sometimes over months and English mediators doing most of it in private, usually within a day, a hearing would be a very unlikely element.

Commercial mediation is a confidential process, which is voluntary. There are no judges or judgments. It is without prejudice to the underlying legal claim. If the parties agree a settlement, this will be on terms that they decide, and it will only be binding when set out in writing and signed by the parties.

Of course, in this case, the claimants might have felt that they were at a hearing, but that is so far from the spirit and purpose of mediation, that it is disappointing if so.

Conclusion

Like it or not, the general population are often educated by the media and popular culture. While Mr. Bates v The Post Office may not have depicted the benefits of mediation, it does open the door for a broader conversation. I am keen for those outside of the legal world to understand that this was not a true representation of mediation.

It would be great to see more depictions of mediation in popular culture, showcasing the benefits for parties in dispute and the skills of a mediator. Mediation is a powerful tool for resolving disputes outside the courtroom, saving time, money and stress and it could certainly make a very entertaining TV series!

Nikki Edwards is vice president of the London Solicitors Litigation Association and a partner at Howard Kennedy LLP
lsla.co.uk

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