The Ingredients for a Successful Mediation

Mediation has ceased to be a novelty. Once regarded by many civil litigators as at worst a threat to fees and at best slightly fuzzy and oddball, mediation has become almost a routine step. However, within this increasing familiarity lurks a danger - that mediation comes to be regarded as simply a procedural step, in the same way as, for example, disclosure, and that the impressive success rate statistics, which have been such a selling point, begin to decline.

Success, of course, may mean different outcomes for different parties. It does not always mean conclusion of a settlement. I have seen cases, both as a mediator and representative, where mediation has been used effectively at a very early stage by potential Defendants to discourage Claimants from issuing proceedings. I remember one occasion when a whole day was spent by Defendants to a professional negligence action very effectively rubbishing the Claimants case. The fact this exercise took place in the presence of the individual Claimants made it all the more hard hitting and conclusive from the Defendants' point of view. However, in the majority of cases success will mean having a signed written agreement by the end of the day putting an end to the dispute and ruling out the uncertainty of a Court imposed solution, the possibility of an appeal and all the expense that goes with it.

What then are the ingredients of a successful mediation? I suggest four key factors:

1. Choice of Mediator – make no mistake, choice of mediator generally will have a profound effect on outcome. There are poor mediators out there and mediators who may not have the chemistry necessary for a particular case. There are also some excellent mediators with a wealth of negotiating and mediation experience. Personal recommendations are the best guide. Repeat instructions to tried mediators are usual. Mediation organisations such as ADR Group and CEDR are happy to put forward lists of suitable candidates.
2. The Mediator's preparation – much can be achieved in the days and weeks before the mediation by the mediator contacting the parties and their advisers. This will build up rapport and engender trust, narrow down the issues and ensure that all parties and teams come to the mediation fully prepared, with full authority to negotiate a settlement and with any fantastic expectations reduced to reasonable levels. There is no reason why the mediator should not use this period to sensitively challenge the parties on makeweight arguments put forward in pleadings and correspondence which, unless disposed of at an early stage, will only serve to waste time and muddy the waters on the day of the mediation. In particular the mediator should ensure, by encouraging the parties to prepare in adequate time, that there are no surprises pulled out of the hat on the day of the mediation which undermine progress.
3. Choice of Venue – there is nothing worse than attempting to mediate in cramped rooms in rickety old buildings with the mediator shuffling down creaking corridors. The best venues are modern and airy, ensuring space and confidentiality for each party and with space into which the mediator can retreat to collect his/her thoughts. Generally parties will see the sense in saving costs by using the offices of one or other of the firms' of solicitors involved but sometimes it will be necessary to find a venue on neutral territory.
4. The Parties' preparation (normally through their solicitor)– this should not be left to the last moment. The clients should have the process fully explained. A flexible strategy should be agreed for the day and any necessary authorities obtained. Clients should have a clear idea of what they hope to achieve. It is highly desirable, although not always achievable, to have any funder or insurance company represented. At least the representative should be available on the end of a telephone throughout the day and into the evening – I remember having to call one insurer in order to conclude a settlement at his office Christmas party.

Along with the Civil Procedure Rules, mediation has been just about the most influential development in civil litigation over the past decade. There has been a sea change in the way we conduct litigation and resolve disputes. But anyone who regards the mediation process as simply another step towards trial in these enlightened times will do so at their peril. With the right preparation and the right mediator there remains a high prospect that a dispute can be settled either on the day or shortly afterwards and the client and the Court will thank you for it.

Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.