Who’s Who Legal brings together Alan Limbury at Strategic Resolution, Rosemary Jackson QC at Keating Chambers and Allan Stitt at ADR Chambers to discuss recent developments in the field of mediation including its increasing popularity, the future for younger practitioners and potential challenges facing the practice area.
Alan Limbury: While judges, politicians and litigation lawyers tend to value mediation for its speed, confidentiality and efficiency in achieving “settlement”, businesses, for which disputes are a regular by-product of doing business, increasingly recognise the value of mediation as a way to explore creative solutions that lead to “resolution”. By this I mean an outcome that:
Rosemary Jackson QC: Undoubtedly the costs of litigation and arbitration continue to be one of the main driving factors, as businesses begin to see mediation as a speedy and cost-effective way of resolving disputes. I mediate many disputes where, despite cost-budgeting being controlled by the court, each party has projected costs of £1 million or more (sometimes much more). In comparison, the costs of a mediation are modest. In addition, I think a lot of decision-makers welcome the opportunity to take back control and resolve their disputes face-to-face, having seen what happens when the legal process take control and drives them further apart rather than closer together.
In construction disputes, I think businesses are finding mediation particularly attractive because of the ability to agree the carrying out, completion or rectification of works as part of the settlement – things a judge or arbitrator cannot order.
Allan Stitt: Business people aren’t in business to fight lawsuits. They’re in business to provide products or services, and to make money in the process. And never does the business plan treat costs spent on unpredictable litigation as positive. So business people want to resolve their conflicts if they can do so on a reasonable basis.
Mediations produce settlements when parties can look at arguments, assess risks, and make decisions that factor in the benefits of avoiding the risks. Business people are used to that. They assess risks every day and see the benefit of focusing on making profits rather than focusing on proving that they are “right”. So business people increasingly see mediation as a way to resolve disputes and stay focused on what they do best.
Alan Limbury: The passage of state legislation in areas of perceived power imbalances has created schemes requiring use of mediation before litigation may be commenced. This has produced significant growth in mediation in areas such as family law, farm debt, small business and retail tenancy disputes, to name a few. Federal legislation requires applicants to file a statement of what “genuine steps” were taken to propose or use ADR techniques before commencing proceedings and respondents are required to state whether or not they agree with the applicant’s statement. Lawyers are required to advise their clients of this regime or personally have to pay costs. Busy trial schedules are an ongoing incentive for commercial judges to pressure or be willing to order parties into mediation. All of these measures have seen growth in the use of mediation over the last 25 years.
Rosemary Jackson QC: The growth of mediation in construction and engineering disputes in the UK has been phenomenal. Costs budgets filed with the Technology Court for approval by the judge routinely include the anticipated costs of a mediation. The question is now at what stage the mediation will be most effective, rather than whether to mediate.
Public finance initiative (PFI) projects are increasingly turning to mediation or assisted/facilitated negotiation to seek to resolve disputes. As many school and hospital projects have moved into their operational phases, parties find themselves dealing with disputes relating to the construction work as well as the provision of facilities. Given the length of many PFI projects, I am finding that parties are willing to explore whether they can reset their relationship to enable them to work together for the operational period rather than endure serial adjusdications and bad relations for the next 20 or 25 years.
Allan Stitt: There are a number of sectors that have seen significant growth in mediation over the past decade. One of the big growth areas is estate disputes.
Resolving conflict around the interpretation of wills is often contentious, emotional and costly. One of the challenges is that, because costs of litigation are often paid by the estate, those fighting sometimes don’t feel as though the process is costing them anything. And family fights are often personal.
A skilled mediator can help feuding family members see that the costs are real, and that there are benefits to putting the grievances behind them and moving forward with their lives. The mediator can help family members see that they don’t have to agree to be best friends, but that they can agree to move forward in ways that make sense for everyone
Alan Limbury: It is said that the hallmark of a profession is: “There are 2,000 members, there is work for 200 and it is all done by 20.” In Australia, well-known mediators certainly do secure the majority of the large mandates. However, I believe strongly that there is a place for younger practitioners including non-lawyers. There are already instances of this happening. Community justice centres and community legal services provide opportunities for younger practitioners and some pro bono mediation services provide experience to younger mediators through a co-mediation model. The key to building a mediation practice for young practitioners seems to be having had some sort of previous life experience, and reputation, preferably in a field in which disputes are common, so that there is an existing network familiar with the new practitioner from which work can be sourced. International mediation competitions in which students participate are also providing opportunities to build skills and networks.
Rosemary Jackson QC: Mediation is such a personal skill that I believe parties (or more usually their lawyers) are unwilling to take a risk on a mediator they have not used previously, or who has not been personally recommended to them. This does mean that the same mediators are used time and again, and newcomers struggle to establish themselves. I suspect that the problem may get worse for younger practitioners in the future. This is because I anticipate an influx of soon-to-retire lawyers who are thinking of becoming mediators. The wisdom of age, the fact that they are known in their fields, and their experience in dispute resolution, may make may mean they are perceived as a safer bet than young entrants.
Allan Stitt: It is true that there is a 90/10 rule in mediation: 10 per cent of the mediators do 90 per cent of the work. That is true in most Canadian jurisdictions (and most jurisdictions around the world). The reason is that the people who are choosing their mediators generally prefer an experienced mediator (and someone they know or have experience with) over someone who has little or no experience. And that makes sense.
Younger practitioners need to gain experience and develop a reputation in a field that interests them so that those choosing mediators will want to select them to mediate. It may take some time to develop the reputation but that is what is usually required.
Alan Limbury: The biggest challenge will be to resist pressures on the flexibility of the mediation process, which should be designed, in each case, to meet the needs of the decision-makers, as distinct from the needs of courts or lawyers, well-intentioned though they are. Those pressures include misguided moves to define mediation as a process “entered into voluntarily” instead of a process designed to produce an un-coerced outcome. Such thinking precludes court-ordered mediation, which has been operating successfully in Australia since the early 1990s, and precludes mandatory mediation before litigation in cases of perceived power imbalance. Another pressure is the prevalence of former judges (often untrained in mediation) engaged by litigation lawyers as mediators because of their “gravitas” and ability to force “settlement” without regard for the prospects of achieving “resolution”. These mediations are often no more than facilitated settlement conferences which pay no attention to the interests of the parties or the value of their relationships.
Rosemary Jackson QC: Parties, and more particularly, their lawyers, are becoming so experienced at mediation that they begin to use it as a tool, rather than a means of achieving settlement. Unwillingness to engage in any negotiation at all sometimes results from the need to go away and digest information learnt at the mediation, but sometimes it seems as though a party attended solely to gather information, without any intention of trying to reach settlement.
Allan Stitt: Commercial mediation has seen huge growth over the last 25 years. In many jurisdictions, it is now part of mainstream litigation and is accepted as part of the “system”. That is both good and bad. It is good because it means that mediation is being used. But it is bad because being part of the system inhibits creativity.
Too often, mediation is becoming an exercise in shuttle diplomacy, where the mediator is just the messenger who just passes offers back and forth. That may be good and necessary in some cases, but in others, the mediator needs to be more creative and to assist the parties to overcome challenging obstacles. The challenge for mediators is to stay creative and not just mediate a particular way because that is what they are used to.