To mediate or not to mediate?
They say you can’t buy experience. That may be true, but you can certainly rent it. For example, there are many, many mediators for hire. But how do you know who the good ones are? Who should you avoid? And how much should you pay them? Should you bother with mediation at all?
Let me start by saying there are some outstanding mediators in the marketplace. I have been a commercial litigator for over two decades, in which time I have represented clients in mediations more times than I could begin to count. In the majority of cases it has been possible to select a mediator who has been known to me, or to colleagues who can vouch for them, and that is what I have done. So it is probably no surprise that my experiences of acting for clients in mediations have been overwhelmingly positive ones.
Sometimes, however, it isn’t possible to choose a mediator you have worked with previously. Sometimes you have to gamble, and it doesn’t always pay off. Ultimately, in selecting a mediator, you are choosing an individual, with all of their individual characteristics, quirks, foibles, hang ups and prejudices. You hope that their professionalism will carry the day, but unavoidably they bring their personality into the room with them. That can be an unknown quantity, and creates risks – for your client, in that they may not get the service they hope for from the mediator; and for you as the solicitor, because your client will probably blame you if the mediation doesn’t go well and the mediator is perceived to be in some way responsible.
Of course, all mediators have to start somewhere. In my experience mediators tend to be solicitors or barristers, but I have worked with accountants, engineers, surveyors, land agents and lots of other professional people. Being a practising lawyer does not in itself make you a better mediator, necessarily, though you may have more litigation war stories to tell than someone who doesn’t have a legal hinterland. But there are many non-lawyer mediators, and among their number are some of the most experienced in the country. So don’t be put off by the fact that a mediator is not a lawyer. Just make sure they are the right person for the job.
One of the important considerations in selecting a mediator is how much they are going to charge you, or rather your client, for the service they offer. The mediators with the grandest reputations can be extremely expensive, compared with less well known practitioners. Everything is relative, though: if your dispute is a battle between neighbours over a leylandii tree then a mediator who charges £5,000 per day is unlikely to be an attractive proposition; but if the dispute involves the costs of cleaning up an enormous oil spill in Alaska or the Gulf of Mexico then frankly the costs of the mediator are likely to be inconsequential. It is about getting the right person for the job. Every mediator is different, and every dispute is different, so it is not possible to set out any rules. You have to make a judgment when picking a mediator.
Whoever you choose to be the mediator, you are of course aiming for one outcome: the settlement of a dispute. Although statistics are hard to come by, most mediators will tell you that something like 80% of cases will settle at or shortly after mediation. My own experience is consistent with this. What that statistic does not tell you is how many of those cases would have settled anyway if formal mediation had not been tried. Over 90% of cases settle before trial, so it is probably fair to say, nearly all of them would have settled anyway. However, the advantage of mediation is that it (often, though not always) happens before a significant proportion of the costs of litigation are incurred. This means that lawyers don’t make as much money, perhaps, but their clients will generally be more appreciative and there is an enhanced prospect that the relationship between lawyer and client will survive the experience. Which is not always the case when litigation is embarked upon.
Because mediators are bringing their individuality to the process, no two mediations will ever be the same. Nevertheless, there are some principles which apply universally. Firstly, and perhaps most importantly, the process is confidential, and it is without prejudice. Whatever is said in a mediation cannot be relied on in any proceedings. That creates tremendous freedom for parties to make concessions, apologies, demands, express their fears and concerns. It is curious to reflect on how often the simple expression of feelings and emotions between warring factions can break down barriers between them, and enable them to move on to the resolution of practical issues. A carefully-controlled mediation can be the perfect environment for this. It is in such circumstances that the management skills of the real masters of mediation come to the fore.
Another important characteristic of mediation is that it is – or is supposed to be – voluntary. In their drive to push parties out of the courtroom and into settlement discussions, judges have created a bank of case law with the simple purpose of penalising those who do not mediate. If you refuse to mediate a dispute then, unless you have very good reasons which you are prepared to stand in front of a judge in court to explain, then potentially your client may face costs consequences even if they win the litigation. It is sometimes suggested that pressurising parties into mediation is a manifestation of the government’s policy of putting money (the costs of operating the courts) above access to justice, but the reality is that most cases do settle through mediation, and clients tend to be better off as a result. As a mediator, a practising litigation solicitor, and occasionally (wearing different hats) a mediating party, I have seen the process from all sides. And every way you look at it, when it is done right, it is a good thing.
For further help or advice, please contact Nigel Broadbent.
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.