There was a point in my career when, after almost 20 years in the law, I had neither heard of nor been involved in mediation as a form of dispute resolution. As I reflected on this fact one morning while on the running machine and overlooking the port of Rotterdam, I realised that I have now, by quite a number of years, practised for longer in the post-mediation era than I did in the pre-mediation age. Throughout the latter period, I have accepted hundreds of appointments as mediator, and have routinely taken my own clients’ cases to mediation. Time to take stock.
My first mediation was a tripartite insurance market dispute mediated by the excellent, and much-missed, Philip Naughton QC. The parties (that is, we the solicitors) haggled and quibbled about how long people could speak for. We expected some form of ruling or order dictating fair division of time. We thought the prospects of settlement were hopeless. Our opponents were thought to be unrealistic in their expectations and unreasonable in their approach (and I have no doubt they thought similarly of us), but when such differences were overlaid with the calm, logic and infinite patience of the mediator a settlement took shape and was concluded. There truly was something to be said for this process. That led to mediator training headed up by the equally talented, and also greatly missed, David Richbell. The case for mediation was made.
We were promised a quicker, cheaper dispute resolution process: one that minimised business risk by providing certainty of outcome and, in doing so, preserved carefully constructed business relationships. A process that was flexible and could deliver more than any court or arbitration tribunal. So did that happen and was anything of value damaged, lost or abandoned along the way?
Undoubtedly mediation can and does provide quicker outcomes where it is successful. The parties are not constrained by either the limitations set by the diaries of an (often) three-person arbitration panel or the busy schedule of the court – they can select their mediator to suit their own timetable. They can also choose the point at which the arguments and evidence are sufficiently well developed to warrant the effort of an attempt at settlement – they are able to seize the moment; an opportunity easily missed in the frenzy of pretrial/hearing activity. Legal representatives and their clients have become increasingly skilled at planning for, and identifying, the optimum timing of mediation, frequently reversing or expediting elements of the formal litigation/arbitration process by, for example, early (or delayed) exchange of witness statements or experts reports limited, specific pre litigation disclosure, or draft pleading, specifically to allow for greater prospects of success in mediation. This, in itself, is a collaborative approach.
Whether or not the process provides a cheaper solution depends to some extent upon whether it is successful. When it is, then invariably the outcome will be less expensive than a full trial or arbitration hearing. Even in circumstances in which mediation does not fully resolve the issues between the parties, much of the preparation time will have been valuable as addressing issues necessary for trial in any event. Mediators can raise concerns as to the number of attendees at the mediation, each one adding a further layer of cost, without clarity as to the purpose of the presence of each, particularly where those representing the same discipline or professional skills from the other side are absent. In the early days this may have occurred through curiosity on the part of those concerned or, perhaps, a lack of confidence on the part of the legal representatives as to their ability to deal with all aspects of the dispute in the informal environment that is mediation. Today only the necessary parties attend and, in the interests of saving costs, some of them often depart once their role has been fulfilled.
A distinct benefit of the process has been that the solicitors have honed their advocacy skills and developed a different, more conciliatory and collaborative style than has traditionally been the case in our adversarial system. Barristers too – though less frequently seen in mediation now – have for the most part adapted their style to recognise that the needs of their clients in this process lie in extracting themselves from the dispute on the best terms possible, which may mean adopting a wholly different strategy – possibly one that conflicts with that devised for the litigation or arbitration process. It nonetheless remains a key role of the mediator to persuade the party that believes it has an ace up their sleeve that now is the time to cash it in, rather than keeping it for use in the very trial that we are all engaged in trying to avoid. Of course, close examination of the “ace” in question sometimes reveals it to be no such thing!
The process enables business partners to achieve certainty not only via the resolution of their current dispute, but also in addressing the future of their relationship. An example of this lies in the flexibility of mediation, which is wholly absent from other processes. In one instance, partners in an offshore relationship discovered, one year into a 10-year contract, that the terms of this contract – whereby the risks and rewards of the venture were to be shared between them – were interpreted entirely differently by each of them. Both parties were now wholly invested in the project and unable, without suffering real detriment, to extract themselves from the contract for the remaining nine years; yet neither could live with the other’s interpretation of the agreement. Mediation allowed for a full resolution in respect of year one, and a rewriting of the contract to cover the remaining years. An example of a relationship rescued from near-catastrophic failure.
But has the existence of this process given rise to a more fundamental change – that is, the manner in which the parties and their legal representatives approach the resolution of disputes from the outset? I think it has.
"The fear that settlement of disputes through mediation might impoverish the sources of judicial precedence has not been realised... The principal gain lies in cases being settled earlier and at less expense"
One of the more challenging tasks used to be how to extract a repentant litigant from proceedings, once started, for fear of being presented with an unaffordable demand for costs by the opposition. This could lead to months, if not years, of litigation while the reluctant claimant hopes for a settlement approach from the defendant – often one that never comes. It is many years since I have faced that dilemma. The now-routine use of mediation allows both parties to make an early assessment of the use of litigation without adverse inferences being drawn. As a mediator, however, I observe that in addition to providing warring parties with the opportunity to exit gracefully and inexpensively from unwise litigation, it might also have introduced the opportunity for parties with less meritorious claims, no longer quite so fearful of the cost of extracting themselves, to “give it a go” on the basis that if the prospects of success remain unpromising, mediation will be available to provide an escape route.
More positively, perhaps, the business of litigation is now embarked upon and pursued by the majority, with an eye first and foremost to the settlement process rather than the trial – which may be regarded as the fallback position, rather than the end game. Parties carefully consider the most appropriate timing for mediation (not always agreeing on that) so as to give the process the best prospects of success. Not infrequently, they will appoint their mediator and consult with him or her on appropriate timings, as well as the best structure for the process.
Pleasingly, practitioners and the courts have mastered the interaction between processes, so as to take the best and most appropriate aspects of each to tailor a format best suited to the nature of the matter in dispute. In one notable case involving multiple claimants and defendants in overlapping claims, the subject of two High Court actions (but not appropriate for consolidation), a Commercial Court judge ordered both actions to be mediated simultaneously before the same mediator. Despite the fact that the first day of mediation saw 85 people in the room, a process was devised that allowed for all of the separate interests to resolve their involvement by achieving a degree of visibility over the ultimate possible outcomes, which two separate court actions could not possibly have offered them. This was a creative and practical decision by the judge and legal representatives in question; having established the areas of dispute between them with clarity and discipline through the services of the court, they then found the areas of common agreement through the informality, confidentiality and flexibility of mediation.
Another creative solution was devised in a multi-jurisdictional dispute in which the legal representatives were capable of a solution to the principal points of difference, but could not reach an agreement on the substantial costs expended in a variety of jurisdictions – each of which had its own rules to determine where such costs would fall. The parties reached their own settlement agreement, which was itself made subject to a mediated solution as to costs.
Mediation has, in many respects, enabled lawyers to enhance their skills across the different processes, and to use them in the ultimate best interests of resolving the dispute. I return to the question of whether anything might have been lost in the post-mediation era. The initial fear that settlement of disputes through mediation might impoverish the sources of judicial precedence has not, it seems to me, been realised. I have not sought to analyse court statistics, but my impression is that the principal gain lies in cases being settled earlier and at less expense, rather than in mediation eliminating all disputes that were previously fought. New decisions still flow from our courts.
The area that perhaps causes me some hesitation is that of negotiation, by which I mean the skills developed by experienced lawyers meeting with their opponents at an early stage to endeavour to resolve disputes. Does this still occur? My impression is that, while it does, the emphasis is less on settlement by negotiation but more upon the ultimate mediation and the process that leads up to that. Does that matter? I used to think so, but I am no longer sure. As lawyers master the opportunities offered by mediation I believe they will be able to see more clearly the correct settlement strategy for each dispute individually, and traditional bilateral negotiation skills will resume their place naturally in each lawyer’s armoury. At that time, we will know that mediation has truly come of age.