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02 Jan 2024

Mediation – The Mediator and Client View

Date: January 2, 2024

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The recent decision in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 has brought mediation and dispute resolution generally back to the (legal) front pages.

This article is to give the view from the mediator and the client perspective on mediation and what, if any, impact the Churchill decision has on those views.

The Mediator Perspective

Being the first to propose mediation should never be regarded as a sign of weakness. It can and should be projected as confidence in a client’s case.

What is clear is that the parties should mediate as soon as they reasonably can (bearing in mind of course that mediation is not a trial, and therefore does not require the same extent of preparation and particularity). It is seldom the case that an unsuccessful mediation is a complete waste of time and money, as it affords a valuable opportunity to probe the case of the other party. For example, an inability to answer reasonable requests for information might speak volumes as to a party’s ability or resolve to see its own case through to trial, might facilitate effective post-mediation ADR (many cases settle soon after an unsuccessful mediation day), and should certainly assist in any subsequent placing of a Part 36 offer.

There can be little doubt but that the use of virtual mediation was advanced by the pandemic and that it is here to stay. The experience of mediators tends to be that there is little material difference in success rates between virtual and in person mediations, but it is down to the party representatives to advise as to which is suitable in the circumstances. Virtual mediation is often preferred by commercial clients (in particular insurers) where the inevitable downtime of a conventional mediation day is avoided, and they are free to continue with other work. In person may be preferred where one or more of the attendees is not comfortable with the technology, or there is the need for face-to-face interaction.

However, it is sometimes the case that a party will state that they do not wish to attend an open session, the most often cited reason being alleged aggressive behaviour on the part of the other party (or their representatives) on earlier occasions. Whilst respecting the wishes of all parties the mediator should not just accept that without further enquiry. Unless there are pressing reasons for the opening session not to take place (for example genuine fear), the potential benefits of the opening session are likely to outweigh such concerns. It enables the mediator to repeat what has been said to the parties in private with regard to the nature of the process (thereby reassuring the parties that each will be treated equally), and at a basic human level the preliminary introductions will hopefully be courteous and set a good bedrock for the day to come. Whilst it is doubtful that it will cause a party to regard the other as having a halo, equally it may reassure them that they might not have horns after all. Open sessions are rarely comfortable experiences, but there is a marked distinction between a candid and uncomfortable exchange of views and the session becoming oppressive or abusive. If the latter, the mediator should find a way of concluding the session and moving the parties on to breakout sessions.

Competent representatives will be familiar with the fact that whilst they can advance the case of their client emphatically, during the mediation day they primarily operate as mediation advocates in order to assist their client with the best chance of settlement. Acting as a litigation advocate as if at a hearing seldom assists anyone.

Initial offers are seldom received with satisfaction, usually with affront and sometimes with reference to the need for hats and coats: it has been said that the parties are never further apart than when the first offer is made. However, offers have to start somewhere.

Wherever possible the parties should be encouraged to make bold offers, safe in the assurance that in mediation they can explore avenues of settlement and that nothing is binding until any settlement is the subject of a written agreement. There is no reason why such an offer cannot come from the claiming party, and it enables the mediator to invite the party receiving the offer to respond in a similar fashion. Minor concessions from stated positions (commonly known as ‘salami slicing’) are to be discouraged wherever possible: they are frequently a waste of time and can be taken as an indicator of bad faith.

The parties should not be shoehorned into any settlement. A mediation day is particularly exhausting for a lay party, and the need to end the mediation to reflect on the situation should be respected by all concerned. Although a mediation day may end without an apparent result, often it will have proved a catalyst for continuing without prejudice discussions resulting in settlement. In such circumstances a mediator will usually make known their willingness to continue to assist if required to do so.

The end of the mediation day will almost inevitably see all concerned tired, and may take many forms: from a party storming out of the building to all retiring to the pub. The parties will hopefully feel that they own the outcome and have closure, and the importance of a handshake is never to be underestimated.

The Client Perspective

Pre-action correspondence beyond the exchange of the letter of claim and detailed response is of limited value, often being argumentative (litigating in correspondence), positional, or both. The professional representatives need instead to advise so as to reach an objective view – has sufficient information been exchanged to reasonably understand the case of the other party/know the case that has to be answered? If it has, the dispute is ready to go to mediation.

Mediation post-issue of proceedings. Where that could have taken part pre-issue, that is frustrating for a client. That frustration is not a basis to refuse post-issue mediation, but as a client some explanation needs to be requested/provided for why mediation did not take place pre-issue.

Propose up to three possible mediators (share their CVs when you do), and do not argue about the other party’s proposed mediator without very good, objective reason. You cannot choose your judge, so any improvement on that by being able to at least propose (& ultimately agree) the mediator is an opportunity not a threat.

Do not make a song & dance about the mediation agreement. Does it keep everything that is capable of being subject to mediation privilege, privileged and is it clear about sharing the costs and who is going to be there.

Duration of mediation. Has this been given serious thought? Factors I want to see balanced include: are the issues e.g., the factual matrix, relatively uncontroversial, are the parties and their representatives sufficiently experienced to have a half-day session & would a full day mediation mean mediation will not take place promptly.

Mode of mediation – virtual or in person? This needs assessment on a case-by-case basis but as a client I want to see it given careful thought. Factors to balance include: sophistication of parties and their representatives, would in person improve the prospect of getting past any ‘deal breakers,’ & would one mode delay things unduly compared to the other.

Venue (in person mediation only). Do not argue about venue, someone may have to compromise and as a client I am happy to do so!

If a party intends to rely on considerations that are not ‘issue based’ i.e., those that are germane to a decision on the strengths, weaknesses, etc of a claim then make sure this is stated in the mediation statement and be prepared to produce documents. The best example is a party’s financial position. If that is something that I am going to be asked to factor in, then I expect to see compelling evidence – what would you do if you were in my shoes and trying to persuade me to e.g., accept payment over 12 months?

Opening session. If the other party wants one, always agree as you will always learn something about the other party and/or their representative. Do I want one – it is seldom necessary so I would prefer to get things underway in other ways.

Make them because, as a client, this means two key things should be happening. Firstly, mediation has or can progress from positional exchanges. Secondly, the dispute is ultimately about money, so start talking about it. Do not be offended by any offer, as a client I do not have to accept any offer!

Work the mediator. (i) Sometimes there are things that the mediator should know but which he/she should not (immediately at least) disclose to the other side, so tell him/her what that is and make clear it cannot be disclosed until authorization is given. (ii) If I want to understand something about the other party (their case, an offer they have made, rejection of an offer, etc) then get the mediator to ask – the other side may refuse to give an explanation, but at least the question(s) have been put in a neutral way (better potentially than ventilating in an opening session). Conversely, do not be positional, that simply lapses into being a litigator and not only will the mediator spot that, but it will be seen as litigation advocacy not mediation advocacy.

Keeping the process going. If needs be, reconvene if there was an opening session. Get the legal representatives to meet with or without the mediator.

Settlement. Get it all in writing.

What if a settlement is not achieved? The mediation may be over, but negotiations should never be regarded as over. I expect legal representatives to agree to continue to discuss matters on a without prejudice basis.

What is the Impact of the Churchill decision on the above?

The core of the Churchill decision that is of general application is the determination that the court can lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process provided that the order made does not impair the very essence of the claimant’s right to proceed to a judicial hearing, and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.

Mediation is always an opportunity to settle disputes quickly and at reasonable cost.

Fairness as an outcome of mediation vs a trial is a mismatch. Judicial determination has absolutely nothing to do with fairness. As with any negotiation, i.e., not just mediation, a party that does not expect to reach agreement without making concessions (sometimes uncomfortable concessions) is probably being unrealistic, badly advised, or both.

Mediation is never going to force a client to settle, no mediator would countenance that. As such it can never impair the right of the client to seek a judicial hearing.

About the authors

Roger Dugan and Peter McLoughlin were in business together for 25+ years running a ‘boutique’ law firm, and as such are both experienced solicitors.

Roger has been in the litigation funding industry since 2019 and has approached mediation as a client. As our Business Development Director, Roger is responsible for all insolvency litigation work at Asertis.

Peter has been an accredited mediator since 2004 and has approached mediation from that perspective. See also https://mc-mediation.co.uk/.

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