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What is mediation?
Mediation is a structured, flexible form of conflict resolution, carried out in a confidential and controlled environment, with the assistance of an expert in resolution to assist in reaching agreement without the Court determining the case, usually over a full working day. The aim is a better outcome for all parties than rolling the dice at trial.
If done properly, it allows the possibility of creative outcomes that the Court can't provide, for less cost, time, and stress than fighting to the end.
Mediation practice over many years has evolved for civil disputes and is now mature and understood. It's without doubt the best chance you have to resolve a dispute that can't be settled easily, other than at trial.
It's a more comfortable environment than a civil trial but it's by no means a hippy retreat or a way to avoid confronting reality. It's not a matter of pacifying or appeasing people, but of resolving disputes effectively by drilling down on the really important issues.
Participating is also a sensible strategic move, even without the Court’s mandate. The object of litigation is resolution, so litigation is only ever a means to an outcome intended to allow the parties to move forward with their lives once the dispute is resolved.
Before litigation starts, parties are often reluctant to talk about settlement, because they don't see the claim and its risks as a reality. Once a claim starts, or the risk of it litigating is tangible, you know that the conclusion will be a trial and all that comes with it, unless a settlement is somehow reached. Mediation is therefore complementary to litigation: a potential escape strategy to avoid the uncertainty of an unknown trial judge.
The desire to settle becomes greater once a dispute is real, hostile, and frighteningly all-consuming, and sometimes a preparedness to settle only arises at all because of the threat and pressure of the litigation proceeding to the end unfavourably. This factor can be used to secure remedies at mediation that weren't thought possible (and which wouldn't be possible if parties were relying only on the Court).
So things that start with litigation can often end with mediation.
It's almost never a waste of time. Even cases that don’t settle at mediation often do soon afterwards, or at least set solid foundations for settlement.
I have a good case, why should I agree to mediate?
I can give several reasons from hard experience, such as:
Nobody has such a strong case that their belief in winning should be absolute. The lawyers may drop the ball, the evidence might go missing or not land as intended, the judge might get it astoundingly wrong, the law may even change, or a brilliant win may turn into an awful appeal, doubling the expense. Just because you think you have a 70% chance of success doesn’t mean that your opponent puts their case at 30%. Guess what? Even the best strikers can miss a penalty, and trial is often no more than a penalty shoot out. Probably both sides assess their chances at over 50%. Probably both will approach the end with optimistic yet cautious confidence, but it is a certainty that someone will lose and it is a fact that nobody knows who that will be until it happens.
Even those that win at trial soon become disappointed that the Court hasn’t awarded them everything they asked for, such as all of the legal costs they spent. Winners still feel like losers financially, as though none of this should have been necessary.
The Court will impose sanctions on a party who unreasonably refuses to mediate. There are very few remaining ‘reasonable’ reasons to refuse.
Mediation as a process opens up the opportunity for outcomes beyond those the Court could order (such as apologies, transfer of property, licensing of IP, or redrafting of documents) and at less cost and faster speed than anything the Court could ever arbitrarily order. Win-win outcomes are not out of the question where mediation takes place early.
A successful mediation results in certainty, and the ability to move on, without the risk of further appeals and wiping out resources with endless attritional fighting. After a final order on litigation, a sore loser may continue to be difficult to pin down and be made to do what was ordered.
Judges can't be relied upon to give you what you need, or even to like or believe you. Mediation will put you back in the driving seat of how your dispute is resolved.
If you go to trial and lose then you will regret not managing to settle. So if you have one window to create an environment where a claim may settle, take it seriously. You may practically be forced to mediate by the Court. If so, you can either treat it as an opportunity or an inconvenience. Either way, make the best of it. If it fails, you can say you tried, and avoid the sanctions from the Court for not making the effort.
I’ve already tried to mediate this.
Unless you’ve appointed an accredited civil mediator, I doubt you have.
Mediation doesn't mean asking a third party to speak to someone on your behalf, to talk them around, or to have a round table meeting where everyone airs their grievances or conducts an intervention into a party’s views and attitude.
A proper mediation is more than asking a mate, colleague, family member, or trusted friend to help by having a word or bashing heads together. Those things aren't structured, impartial or appropriate outside of a schoolyard. Mediation is a recognised process, controlled, scheduled and sanctioned by the Court. If done properly, it achieves better results and less misery than allowing litigation to follow its natural course.
What if we are too far apart to possibly agree anything?
Anything can be settled. The only variable is where it settles. Seemingly intractable problems are the most suitable to mediate because litigating those will mean someone loses everything and even the winner still misses out on the prize. The bigger the potential fall, the more reason to find a bridge. Disputes without much in dispute on the other hand rarely require mediation at all.
Many parties get so entrenched in their dispute but also think that the dispute itself is ridiculous - yet they can't escape it. Mediation is the obvious route through. Don't refuse the lifeboat.
My opponent won't agree anything, why should I mediate?
Not everyone attending mediation wants to be there, and maybe they think it a waste of time, particularly if it's ordered by the Court. But in any dispute, each side thinks the other won't bend until forced to, and that's where a skilled mediator comes in. Once persuaded to attend mediation in the shadow of a trial, settlement has a fighting chance as the only practical alternative to a trial. Also, because literally nobody wants to have to deal with a trial, the likelihood that they might agree something might be greater than you think.
Where will it happen?
If in person, then somewhere local or central to the parties, maybe a lawyer's offices, but always somewhere suitable for the purpose and agreeable to all participants. If it concerns a property issue, it can often help to have a site visit, so that we can explore practical solutions, measure boundaries, etc, particularly if a judge plans to carry out a site visit at trial anyway. In that case, even a failed mediation can narrow issues significantly.
We will need 3 separated areas, for confidentiality reasons. I can arrange somewhere if nowhere can be agreed.
More and more often, mediations can take place by Zoom, which saves costs and travel time and means that participants have control over their own environment, refreshments and meals, climate, surroundings, and comfort breaks. Often, that works best. I can host a mediation by Zoom that keeps you in your comfortable place.
Do I need legal representation at mediation?
Probably, because the role of a mediator is not to advise on the terms of settlement reached or of offers received. Your legal representatives are there to do that and a mediator can't step in if they aren't there. Without their advice, you risk agreeing a bad deal or rejecting a good one. It's an especially bad idea for one party to be represented and the other not to be.
Why instruct Proper Mediation?
For mediation to stand a fighting chance it has to be done properly, which means by someone who has the right background and experience. I'll understand the terrain and I'll be familiar with the strategies and tactics being deployed by both sides. I'm also acutely aware of the risks and consequences, in costs and otherwise, of negotiations failing. I know from experience the reality of civil procedure and the costs incurred in getting to the finishing line, regardless of winning or losing. I'll push back against iffy legal arguments. I won't become lost in, or confused by, legal details and arguments, and I can engage with the legal representatives on their level. If you think your opponent is pushing on the wrong legal premises, I can challenge them on that. I can also deal with those who aren't legally trained (i.e. clients) on their level.
I won't require basic explanations about the merits of the case or of procedural points. I can quickly identify the key documents and evidence, and weaknesses in either side’s position that might assist in reaching a conclusion without those weaknesses being exposed publicly at trial. I won't approach mediation with the sole aim of reaching a resolution to improve my score sheet. I'll understand the full context of the dispute and the legal positioning of those involved, how and why they got there, and what the barriers to resolution are.
I'll put in as much time as necessary to understand the issues and positions and to give every opportunity for settling, before, during, and after mediation. I won't limit my preparation time or call it quits early.
Will I have to be in the same room as them?
No. There's no need for face to face contact. For that matter, there is no need for speeches, handshakes or any other formalities unless everyone wants that. Nobody should be exposed to a hostile environment when they have attended in good faith to attempt to reach a resolution. If everyone wants a joint meeting, we'll do one, but otherwise, we won't. If we settle, perhaps you will want to meet your opponent and shake hands. If not, no problem.
Why can’t the lawyers just negotiate?
If the lawyers could just talk and work it out, they would have settled it by now. But that rarely happens because they're the agent for their client, so they can't say what their client’s real motivations are without showing their hand. They can't easily act to get their client the win at the same time as making tactical proposals. Sometimes, the involvement of legal representatives appears to make the distance between parties even greater - they may just wind each other up. If they outright say what their client really wants, it gives the opponent the opportunity to either say they can never have it, or to impose a painful ransom on it. So they beat about the bushes and never make the offer to settle for what their client really wants and fight for a pleaded case that everyone knows isn't realistically achievable.
So how do we get there? A mediator bridges that space, particularly if he can speak with the lawyers as an equal who understands their litigation strategies. A mediator sees the cards held by both sides and can carefully present any offers without prejudice to anyone's hard line position..
My opponent’s solicitors are more aggressive / more experienced / larger than mine. How do I know they won’t bully me into giving up?
I hear you, and have played against big opponents and senior counsel all my career. I'll keep everyone in check. I'll control the process and challenge any legal arguments made by your opponent if legal arguments become an ironic hindrance to discussions. I won’t throw the game and I won't allow junior representatives to be taken advantage of by more senior opponents or silks - the process is about resolution here and now, not who is going to win tomorrow. I won't lean on you to settle or make concessions that you don't want, or shouldn't have, to make. I may challenge what you say too, but better to hear it from me than the trial judge.
Mediation shouldn't be a place where one side manages to exert pressure on the other by a show of strength or experience. I'll keep a level playing field.
How much should I tell you in mediation?
I want to hear from you, not just the lawyers, about what makes you tick, how you feel about the problem at hand, and what a satisfactory outcome for you might look like.
I want you to say things to me that you wouldn't be prepared to admit to your opponent, in strictest confidence. Be as open with me as you like, and I promise not to use anything you say in any prejudicial way. I won't pass on anything you tell me, unless you very clearly tell me to.
Often, parties don’t want to tell me everything all at once, and that's fine. Tell me as much or as little as you want about what you want to achieve until you want me to have the information.
Can I arrange one at short notice?
Absolutely. With focussed preparation, mediation can be arranged within days, particularly if there are tight court deadlines. I can be ready as soon as you are. Shortage of time isn't an excuse not to mediate.
What do I need to send you?
Whatever you think I need. I'd normally expect a pack of documents and a confidential summary of where you stand and what you really want. Make it for my eyes only if you prefer. In an issued piece of litigation, I would like to see the statements of case, any key evidence including important witness statements, court directions and costs management orders. I won't need you to redraft the statement of case or explain it further - I will have read those carefully anyway. If you think I need to see any legal precedents or argument, then send them too. I'm happy to receive all of this in the cloud. Expect me to ask questions on the day; have your representatives briefed with the answers so that I can put your best case to your opponents.
How should I dress?
However you want, I don't care. Statistically speaking, you probably won't get a better result by being more smartly dressed, but if you feel better wearing a designer suit, by all means do, I won't judge you.
What do I need to do to get started?
Email getstarted@propermediation.co.uk, call on 01326536885 or WhatsApp me with basic details of the dispute and the parties and I will be back in touch very shortly to discuss how I can help.
What are your terms and fees?
Our services are set out in our Agreement to Mediate, which also covers what you should expect from me and what we expect from participants. We work within the CMC's fixed fee structure for modest disputes, and our other fee structure proposals are here. The day fee depends but is currently normally £1,000 per party for a 7 hour day, although if there are exceptional or deserving circumstances, please let me know and if I can make allowances, I will. If you appoint me as mediator, I'll ask you to sign off on the Agreement to Mediate and then we can get started and turn a corner together.
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