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Mediation 2018: Discussion

WWL brings together Jane Andrewartha at Clyde & Co LLP and Kenneth Feinberg at The Law Offices of Kenneth R Feinberg to discuss issues facing mediation lawyers and their clients in the industry today.

How has the importance of mediation in international dispute resolution developed over the past five years?

JA: We have seen substantially greater acceptance of mediation as a form of dispute resolution outside the key jurisdictions of the US and the UK over the past five years, especially in those countries that have now set up and developed their own mediation centres.

The process is still discernibly different across the various jurisdictions, although there is a high level of tolerance of, and interest in, that which deviates from the local “norm”; participants expect their mediators to adapt and be innovative.

Mediator numbers have expanded significantly in the UK; previously there were large numbers who had trained but had no experience, and there are now many mediators at all levels of experience – particularly for smaller claims.

There is greater (lawyer) participation in the design of the process, although this does not always demonstrate full understanding of the value to the mediator (as opposed to the parties) of all aspects of the process.

KF: The good news is there is increasing recognition abroad about the wisdom and effectiveness of mediation. There is more cross-fertilisation of dispute resolution in the US and Europe. But this is a slow process. I doubt that mediation will become mainstream in Europe or Asia, where there is a different dispute resolution culture and a very different way of litigating. Mediation will remain an anomaly.

 

Over the past year or so, what have been the biggest challenges facing mediation practitioners?

JA: One of the greatest challenges relates, paradoxically, to lawyers’ greater knowledge of the process. This can result in the belief that they (many having trained as mediators themselves) have a better way of proceeding. In some cases, such input is valuable but there is not always a full appreciation of the value to the mediator (and therefore also to the process) of elements such as the opening session.

Similarly, greater client familiarity with the process produces challenges; some feel the process has become somewhat formulaic and their presence is not always necessary. The mediator must ensure the process remains fresh and relevant to the dispute in question.

A most welcome challenge is that legal practitioners, and their clients, have become more imaginative as to the range of situations to which mediation is relevant. Many see the opportunity presented by a collaborative process overseen by neutral design processes, which take the best of mediation combined with other dispute resolution techniques.

KF: The biggest challenge is the number of mediators. Unlike even five years ago, today every ex-judge and senior lawyer wants to be a mediator, flooding the market with solicitations and marketing techniques. Mediation seems to be the fallback choice for judges and lawyers. Training and skill seem secondary. It is whatever the market will bear.

 

To what extent is mediation now used in contract clauses as a means to solve conflicts before resorting to arbitration or litigation?

JA: Many contracts now contain the parties’ pledge to consider mediation in advance of other forms of dispute resolution. Such clauses are effective only where they are not mandatory, but rather where they encourage both parties to consider the benefit of such a process. A mandatory provision often leads to premature use of mediation, wasted expense and disillusionment with a process that could, at a later stage, prove effective.

Such contractual provisions might be thought less important as solicitors now have more knowledge and experience of the process, but evidence shows that a body of potential litigators encounter mediation for the first time when examining their contractual provisions.

The best contractual clauses provide for parties to consider mediation at all stages of the dispute, and do not dictate timing that introduces the process before they have had the opportunity to marshal their own thoughts on the true merits.

KF: In my experience, contract clauses calling for mediation remain relatively rare. Arbitration clauses, however, are becoming the rule rather than the exception.

 

To what extent is sector-specific knowledge important on the part of the mediator?

JA: The skills of the mediator are paramount to the success of the process. Such skills rely, in many cases, on a career spent resolving disputes, understanding the needs of warring parties, and finding creative solutions. Sector-specific knowledge might therefore be thought to be of secondary importance.

The greater the mediator’s knowledge of the sector in which the dispute arises, however, the greater his or her credibility and authority to guide the parties. There is little doubt that a mediator who “speaks the same language” as the disputing parties will find it easier to gain their respect and to pursue penetrating questions of a relevant nature.

Sometimes a total lack of sector knowledge provides the opportunity to adopt “naive” questioning, which can be effective in bringing parties who are tied up in complex legal disputes back to basics.

KF: I have never deemed “sector-specific knowledge” important when it comes to mediation (or arbitration). First, it is much more important that mediation participants secure the services of a first-rate mediator rather than someone with expertise in the law governing the dispute. Second, beware of a mediator with “sector-specific knowledge”; such a meditator may bring his or her own thinking about the subject matter of the dispute, rather than be educated by the arguments of the mediation participants.

 

How important is government advocacy of mediation to its success?

JA: This remains important to the credibility of the process. Government departments now use mediation in a wide variety of disputes, from high-profile complex employment issues to procurement disputes, and disputes involving the allocation of licences. There is, however, a confused debate in this country as to the relationship between mediation and the issue of financial support to ensure access to justice generally.

KF: Government support for mediation certainly helps. But I find that the government is all too often an unwilling participant when it comes to mediation. The government is only reluctantly willing to diminish its inherent leverage in resolving disputes with a private party. Government power is not easily relinquished by delegating, to a neutral third-party mediator, control of the dispute resolution process.

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