My journey to becoming a qualified mediator (and a bit about the process)
Litigation Partner Peter Brewer on his experience as a mediator
In the year 2000, I was young and fresh faced. I was also in the second year of my training contract with a law firm in the Midlands, looking forward to qualification as a solicitor the following year.
I was assisting my training principal with a large shareholders dispute, when he came to me and told me that he had agreed with the solicitors for our opponent that we would refer the case to mediation.
I had never really heard of the process before as at the time it was not really covered on the legal practice course. I was intrigued.
I attended and immediately bought in to the process because:
- The parties remain in control of the process (as opposed to in litigation where the only person with real control is the judge);
- Anything can be discussed;
- It is incredibly flexible, in part because there are no hard and fast rules;
- Any outcome is possible, including ones that a court could never grant (such as the re-opening of trading relations) or ones that no one thought of at the start of the process.
I resolved that one day I would qualify as a civil and commercial mediator.
Step forward to 2019, and I have now qualified and am entitled to take appointments.
What is mediation?
Mediation is a voluntary process where the parties agree to attend a meeting. However, rather than it being a round table meeting in one room, they agree to also appoint an independent mediator who will try and assist them with their discussions, with a view to the parties reaching a binding settlement by the end of the process.
As a general proposition the parties will be separated into their own rooms during the day, and the mediator will then “shuttle” between them carrying proposals for each to consider.
The process is without prejudice, meaning that anything that is discussed cannot be referred to in any later legal proceedings. This is important as parties may make admissions during the day that might affect their position in any litigation.
It is also confidential; this is also important so that it empowers the parties to talk to each other and to the mediator about anything that they want.
Mediation as we know it now started in the United States and arrived in England in the early 1990’s. It is becoming increasingly common, as parties try to avoid the costs in terms of time and money of litigation. Also, the courts themselves have taken very active steps to encourage parties to mediate, and a judge can punish a party who unreasonably refuses to mediate by making costs orders against them regardless of the outcome of their case.
Who is the mediator?
The mediator will often be a lawyer themselves but that is not always the case. I have certainly encountered mediators who have a business background.
There are advantages to using mediators who are also lawyers, the principal of which are that they will have an understanding of the law and of litigation procedure which is likely to be helpful. However their knowledge of the law should not be used to its full effect as no mediator should every find themselves in a position where they are actually providing legal advice. The mediator is there to be truly independent and not to assist a party.
The mediator is also not there to pass judgment or form an opinion, unlike other forms of alternative dispute resolution (such as arbitration or adjudication). The mediator does not therefore need to be persuaded as to who is right and who is wrong.
So what makes a good mediator? In my view, a mediator will be:
- Calm (especially under pressure);
- They will listen much more than they talk;
- This is particularly important given that the parties will want to share information with the mediator that they may not want to immediately share with their opponent. A deep understanding of confidentiality, and how and when to transport offers and messages is really important.
A bit about the process of mediation
Generally speaking a mediation will last for one day.
The first thing that will happen will be that the mediator will come and introduce themselves to the parties and will try and put them at ease. This is particularly important for parties who are strangers to legal processes (which can still appear overwhelming and intimidating).
Then the parties will meet in what is known as the “open” or “plenary” session. In this session, the parties will meet in a room for a meeting chaired by the mediator. Firstly, the mediator will give a short explanation about the process. Then the parties will each have an opportunity to do a presentation about their cases, their positions and anything else that they think is relevant. Once the open session concludes the parties will break into “closed” session also known as “the caucus”.
In the closed session (which may last for the rest of the day) the parties go back to their own rooms and the mediator then goes and sees each of them to firstly discuss their positions and then, at the appropriate time, to begin transmitting offers between them.
The objective of the mediation is to get to a binding settlement at the end of the day. Most mediators insist that both parties bring draft settlement agreements with them, so that time is saved at the end of the day but also so that any binding deal can be reduced to writing before the parties leave the mediation.
When do you mediate?
The short answer is whenever you want, but the pragmatic answer is that it is probably best to mediate:
- Once the parties have completed all of their pre-action correspondence (so immediately before one party issues legal proceedings against the other); or
- Once the parties have completed their pleadings in the case, but before they attend their first case management conference.
The reason for choosing to mediate at these stages is broadly the same; it is because both parties will have sufficient information to understand their respective cases but the really significant costs will yet to be incurred.
That said I have heard of mediation taking place one week before trial that have resulted in a settlement. There are therefore no hard and fast rules.
The main reason that you would mediate is that it is a highly effective method of dispute resolution. Mediation training house and mediation facilitator CEDR report that 75% of cases referred to mediation settle at the mediation with 15% of cases settling a short time later. That means that 89% of cases referred to mediation settle as a result of the process.
Whether settlement can be defined as “success” depends on what the parties feel about the deal that has been reached. I have often heard it said that a successful mediation is one where both parties leave unhappy with the outcome as one has received less than they wanted to and the other has given more than they wanted to. That critical cross over where people settle their disputes is the very definition of compromise.
However, what will certainly be the case is that the parties will have managed their risk by avoiding trial and will have been released from the costs and the hassle of running a piece of litigation all of the way to trial.
How do you appoint me as a mediator?
I can only be appointed as a mediator if all of the parties to the dispute agree to my appointment. Typically, a party will propose two or three mediators to their opponents, and they will then agree on the one who appears to be the most appropriate to the dispute.
I would however be happy to be proposed as a mediator and have a bespoke mediation CV which can be provided by contacting me.