Winning Through Mediation

An English perspective

When to mediate? Can mediation be successful at an early stage of litigation? Is it necessary to have formal discovery or informal exchange of materials before undertaking to mediate?

In order to achieve the maximum savings in legal costs and case preparation, mediation at an early stage may be desirable. However, as a defendant, there may be advantages in forcing a claimant to take certain steps in litigation to see if they are serious in pursuing the claim, and to demonstrate the seriousness of the defence (thereby lowering expectations).

At a later stage, both sides will be taking the matter seriously and will have sufficient information to assess strengths and weaknesses but costs are large, positions entrenched and on going business relations less likely.

Lawyers especially tend to argue that early mediation, before the disclosure process has been completed for example, is not appropriate. In practice, however, mediation simply requires knowledge of enough information (about the facts and the law pertaining to the case) for the lawyer to be able to advise the client on the strengths and weaknesses of the case, the alternatives to settlement and on any options that are discussed during the mediation. The earlier that mediation takes place and an agreement is reached, the lower the costs will be.

The mediation process can also help to identify what disclosure is essential, rather than the parties simply carrying out full disclosure, or a "search for the smoking gun". The mediator can be invaluable in helping the parties to identify what are important pieces of information. The search for appropriate information in mediation is reflected by the aims and objectives of mediation rather than a trial and in particular the kind of questions that will come up in the mediation: "what does the client want to get out of the mediation?" and "how does this possible result compare with what the court might do?"

That said, in some cases, it may be only after disclosure and witness statements in the litigation process that the parties have adequate information in order to be able to have a productive mediation.

At the moment, it is probably fair to say that most mediation in England still take place some time after proceedings have been issued although this is changing. The Civil Procedure Rules (CPR) (which govern English civil procedure) strongly encourage the use of mediation at the pre-action stage and this is gradually having an impact (see section on CPR below).

How do you select the right mediator?

The choice of mediator will play an important part in the overall success of the mediation process. The administrators of any mediation body will put forward a list of potential mediators for consideration by both parties. Alternatively both parties may propose a list of candidates. Although a wide range of individuals now hold themselves out as mediators, it is important to establish somebody with the appropriate experience and qualifications for the particular case. There are no requirements in English law that the mediator be legally qualified or have undertaken mediation training. In practice most mediators will have undergone some form of training – the CEDR accredited training course is the most popular.

The parties are therefore free to select as mediator a person who is a lawyer or has some other background, depending on the nature of the dispute. If a case turns on issues of law, it may be sensible to have a legally trained mediator, whilst if matters of specialist practice and/or conduct are involved, there may be some advantage in having a specialist (e.g. banker, surveyor) as mediator. Traditionally the party line of most ADR institutions is that mediators need not be an expert in the industry out of which the dispute has arisen. This practice has been altered somewhat by market demand – parties tend to be more comfortable with mediators who know the relevant industry sector – they do not have to explain the jargon or issues that arise. The mediation organisations still argue that it is mediation which are skills are key and industry knowledge merely an added bonus but clients often select mediators because they understand a particular technical sector e.g. IT, telecoms or banking.

The selection of a mutually acceptable mediator can be a time-consuming process. The chosen mediator's style and approach should match the client's case.

Mediators can adopt different styles – they can be facilitative in which case they try to assist the parties to reach their own agreement. Other mediators adopt a more evaluative style where they take an interventionist approach and offer their own strategies for settlement and their views on the merits of the case. Most experienced mediators will use a combination of these techniques depending on the parties and circumstances.

As the mediation market has matured solicitors also appear to be increasingly comfortable about organising mediations themselves rather than instructing mediation providers. Over the last few years a significant number of mediations have taken place without the involvement of an ADR institution. The mediator is selected and appointed directly by the parties and their lawyers (most major law firms now have a pool of trusted mediators who they can instruct direct). This direct mediator market is, in fact, presenting a real challenge to the ADR institutions who provide a valuable role in monitoring mediator quality, educating users, promoting mediation in new areas and introducing new mediators to the pool. There is a risk that the "usual suspects" (the well known tried and tested mediators) get used over and over again rather than trying out new mediators.

Although the parties will be responsible for decision-making in the mediation, and will control the outcome, the mediator will control the procedure and ensure that it is structured in a way that is fair to all parties.

The mediator needs authority and gravitas and must not appear to be partisan in any way. In our experience lay clients and clients from jurisdictions which do not have a culture of ADR can be extremely sensitive to perceived bias and mediators should...