What does it take to close a deal?

Mediation is all about making a deal. Usually some time in the late morning or early afternoon offers and counter offers start to flow and the Mediator may find themselves caught in rooms where “last and final offer” and “nothing more to give” are phrases that are bandied about zealously. A good Mediator will exercise caution in disclosing such views to the other party until it would seem that is genuinely the case. To do so earlier risks creating an artificial impasse.

So what do you need for parties in conflict to reach an agreement?

According to Frank L. Acuff (How to Negotiate Anything with Anyone Anywhere in the World, one of my favourite texts on international negotiation), you need to:

  • Satisfy the logical needs of both parties;
  • Satisfy the emotional needs of both parties; and
  • Convince the other party you are at your bottom line.

If a deal is not forthcoming, at least one of these components will be missing. A good Mediator will identify what is lacking in each room and help it to be found. How will they do that?

Logical needs

Logical needs is usually the area advisers find easiest to deal with, being trained to think logically. A clear analysis of what a worst day, best day and most likely day in court is likely to yield and the probability of each is a good starting point. An adviser should remind their client that even if the probability of the worst outcome is only say 20%, that means if a one day trial were to be run over 5 days with different judges, one of those 5 hearings would result in the worst outcome. Could their client live with that? If the answer is “no”, it is probably not a risk worth taking. So negotiations should continue or the deal on offer be accepted if a better one cannot be obtained.

In this world of increasing “competimates” (where competitors are also trading partners) and decreasing choice of companies with whom to do business (as mergers abound) it may be logical to restore a relationship and continue trading as frankly there is scant choice of other alternatives.

Emotional Needs

This one is a “biggie”. While the deal on offer may make good business sense, emotionally one party may no longer trust the other or they may harbour so much resentment they feel unable to make a deal. Family business disputes are often the worst for this.

Mediators have been known to say to a party: “you are not going to make a deal unless somehow you get rid of your anger”. Easier said than done. On the mediation day this can be helped by an apology, frank discussion between the parties, an “agreement to disagree” on certain issues, “venting” in a private caucus with the Mediator and good summarising and reflecting back by the Mediator, or even something as simple as taking a walk.

Convince the other party you are at your bottom line.

People will always wonder how far they can push the other party and whether there is something more they can gain by continuing to negotiate. At a mediation the aim is to find a deal that is “satisfactory to all”. You will almost never get your best outcome at a mediation. That must be saved as a possible but unlikely lucky dip result of a court hearing, with all the high emotional and financial stakes that accompany it.

The Mediator will gain a better understanding of each party’s interests and needs if time is spent exploring these matters early on in the mediation. It may be the parties will authorise the Mediator to disclose such needs and interests to the other. Moving to bargaining too quickly prevents a sound understanding being developed of “what might work” for each party.

The best way to convince someone you are at your bottom line is to look at them straight in the eye and say so. This is why sometimes, when parties are reaching a deal that encompasses continuing to trade, I will suggest a joint meeting between the two key decision makers with myself so that exactly this can happen. Regretfully this means the advisers who may well have sweated blood in progressing their client’s litigation for many months are not present at the closing moment. But isn’t that a small price to pay for peace and a satisfied client?

At the end of the day if a deal is “good enough” for both parties at a mediation that is a successful outcome. Like so many things in life, striving for perfection or the maximum possible comes at a price of possibly not reaching the finishing line, and not being able to move on to the next challenge. As has been wisely said: “The past cannot be changed. The future is yet in your power”.

What’s in a name?

What’s in a name?

Breaking news:

Prince Andrew’s lawyers are poised on a knife edge, about to ask a US court that Virginia Giuffre’s civil case against him for allegedly sexually assaulting her 20 years ago should be dismissed. They are seeking to argue that the settlement agreement she entered in to with Jeffrey Epstein whereby he paid her $500,000 to end her claim against him and agree not to sue any other “potential defendant” covers Prince Andrew and therefore her claim should be dismissed.

Is “full and final” ever really “full and final?”

As a mediator involved in overseeing settlement agreements being entered in to on a regular basis this is an interesting question: to what extent can a party obtain “full and final settlement” against not only the other party they are in dispute with, but anyone else, named or not?

Which law?

Firstly, in the case against Prince Andrew the governing law and jurisdiction issues need to be considered. It is likely to be decided under state and federal US laws. If it were to be tried under English law and by an English court, there would be several important issues.

It takes two?

In English law the doctrine of ‘privity of contract’ is a deeply enshrined concept that basically says you can only make a deal with the other party who is signing up to it, and you can’t bind others. Then came along the Contracts (Rights of Third Parties) Act 1999 that to some lawyers’ thinking drove a coach and horses through that approach. Section 1 provides a person who is not a party to a contract may enforce a term of the contract if the contract expressly provides that it may, or if the term purports to confer a benefit on it and it cannot be shown that the parties did not intend the term to be enforceable by it. The terms of this legislation apply unless expressly excluded in a contract.

What about a “release of claims’ clause?

Under English law, a ‘release of claims’ clause is possible in settlement agreements. However, it must be carefully and explicitly worded, and the parties must have complete knowledge of the scope of what they are agreeing to. (Yukos Hydrocarbons Investments Ltd v Georgiades and another [2020] EWHC 173).

When it comes to drafting is it “the wider the better” or is specificity key?

Probably the most relevant recent case on the topic in English law is Maranello Rosso Ltd v Lohomij BV [2021] EWHC 2452 (Ch). Here, the High Court (notably at first instance) upheld a release clause that sought to waive all future claims, including against individuals who were not a party to the agreement. The Court held that the waiver of claims against third parties was enforceable because the clause which stated who benefitted from the release was sufficiently “wide and far-reaching” to capture the defendant – the clause clearly stating that the waiver covered parties against whom no allegations had yet been made, as well as ‘Agents and Affiliates’ (as defined in the agreement).

This is to be contrasted with the earlier decision by the House of Lords (now the Supreme Court) in BCCI v Ali and Others [2001] UKHL 8 where the Court said that parties could waive their right to make future claims, even ones of which they were not aware or could not be aware, but that “clear language” was required to do this.

What’s the nub of the legal arguments?

According to the press, the nub of the legal arguments about the interpretation of the settlement agreement we are about to see played out in the US is as follows:
Prince Andrew’s lawyers are arguing that the settlement agreement covers him, as it referred specifically to royalty (as well, by the way, as politicians, academicians, and businessmen among others).
Virginia Giuffre’s lawyers are arguing that the settlement agreement does not cover him as it did not specify Prince Andrew by name and further was intended only to apply against those trafficking rather than those committing sexual abuse.

What’s the takeaway?

Settlement agreements need careful thought and drafting to make sure they achieve what everyone intends. It is certainly possible to obtain a release against claims by third parties in a settlement agreement. The English legal position as to the extent to which the party needs to be named or identified remains unclear. If in doubt, name them!

Posing the question “what if?” will help people to think laterally about what might happen in the future. Fortunately, questions such as this are part of a mediator’s toolkit.

For more information on this topic, see my recently recorded webinar .

Rebecca Attree M.A. (Cantab) Mediator, Attree & Co

Why mediation makes coffee taste better!

IPOS recently hosted a webinar entitled ‘Does mediation present a golden opportunity for lawyers?’ Mediators Andrew Miller QC and Rebecca Attree gave some useful – and surprising – answers.

How do I encourage my client – and the other side – to mediate?

Andrew Miller: When I have my preliminary discussions with the parties I always encourage the lawyers to bring the clients. I often find that it’s the first time that the clients get to understand what mediation is about and how the process will work. This of course means that it hasn’t been something that has been in their mind as an option for them to use during the litigation process. So my advice is to start having a discussion about mediation when your client comes to you with a dispute. You can talk about how things might pan out, what it’s going to cost and what it means to mediate. What you’re doing is bringing the client into the decision-making process, giving them different options and encouraging them to maintain control of the process.

With the other side it’s about putting mediation forward as a really positive option. It’s saying ‘This isn’t something I as the lawyer am suggesting. This is something my client wants to do and may I suggest you discuss it with your client because we think the best option for both sides is getting them to mediation.’

Rebecca Attree: Another way to encourage the client to mediate is to advise them that an unreasonable refusal to mediate may mean they suffer costs penalties later.

How do I prepare my client to make the most of mediation?

Rebecca Attree: Get the client into the right mindset. Mediation is completely different to the litigation process and what the client should be looking for is peace, not war. Remind your client that this isn’t about history – it’s about a risk assessment, managing uncertainty and making commercial decisions.

The client should come to the mediation with an open mind and be prepared to be patient – they shouldn’t expect everything to move in the direction they hope straight away as a mediation can often take a bit of time to warm up. And that’s actually a good thing. It’s necessary for each party to explore with the mediator what their options are, where they’re coming from and how they plan to achieve their goals. Significant progress can happen as the mediation day continues.

Andrew Miller: Solicitors and barristers need to work harder in educating their clients about mediation. As I said before, talk to your client at the beginning of the dispute. Explain how the mediation process is going to work and encourage them to interact with the mediator in the preliminary session and not to be scared to ask questions.

And don’t wait until the mediation day to talk about settlement with your client. I’ll often go into a room and it’s quite clear that the lawyers haven’t discussed a particular issue, which was perhaps on the pleadings or in the mediation statement. What you should be thinking about at a mediation is parameters and in particular settlement parameters. That can be quite an involved discussion; it will of course entail looking at your view on liability and the merits or demerits of the other side’s case. Discussing this with your client before the mediation day allows your client to be in the best position when a proposal or an offer is made during the course of the mediation.

Must there always be a willingness on both sides to compromise?

Andrew Miller: Yes. Settlement is a compromise where both sides might go away feeling slightly aggrieved that they didn’t get everything they thought they were entitled to or paid a little bit more than they should have. Your client may be lying in bed that night having those thoughts, but they’ll wake up knowing their dispute has gone away – and their morning coffee will taste better. And the magic of mediation is all about making the next day’s coffee taste better

Rebecca Attree: Absolutely. Come with an open mind and also be willing to understand where the other party is coming from. The ability to read the other party is key at a mediation. There’ll always be a bit of pain involved for the client as some concessions are usually necessary to reach a deal, but as they say, ‘No pain no gain’.

Why does mediation present a golden opportunity for lawyers?

Rebecca Attree: The settlement rates speak for themselves. With more than 90% of cases settling on the day or soon after as a lawyer it’s an opportunity for you to shine if you can help your client to find a deal. It shows you’re willing to step away from the law and the legal process and engage in a more commercial and pragmatic discussion.

Andrew Miller: Lawyers know about a case far more than the mediator does and that’s something I like to make quite clear to both the clients and their lawyers when I go into each party’s room. I’m facilitating the process but it’s the lawyer who’s in their client’s corner supporting them all the way through the process. If there’s a settlement the client can look to the lawyer as being part of the process and being equally responsible for that settlement happening. And I bet that for the lawyer not having the fear that they’d go all the way to court and their client would lose makes their coffee taste better too.

Blended mediation – why we’re building back better

Before Covid-19, in-person mediation was the norm. Then came the pandemic and remote mediation moved into pole position. Now, as lockdown restrictions start to ease there’s an opportunity for a blended approach that offers the best of both worlds.

We know that in-person mediation works. And we know that remote mediation works. So why not blend the two together for the ultimate in flexible mediation? In one recent case that I mediated the solicitor and one company director physically attended at a venue in London while the two other company directors joined us on Zoom from LA (a little sleep deprived as it was 2am for them, but they didn’t seem to mind).

Blended mediation isn’t just for disputes involving multi-national companies – it can be applied to a range of mix and match situations. One party could be at the mediation in person while the other party attends via Zoom. Or there might be a split attendance within the parties – for example, the in-house lawyer is physically present and the finance director joins remotely. In mediations where barristers are involved, you could potentially have the client and solicitor there in person and the barrister attending remotely (rather handy if there isn’t a joint opening session and they’re only required at the end of the mediation to draft the settlement agreement).

Benefits of blended mediation

There are obvious plus points for using remote mediation in a blended approach. Reduced travel time or costs overall – not to mention a hefty saving for the planet when planes, trains and cars are taken out of the equation for some. Blended mediations are also quicker to set up. With one or some of the party joining remotely there’s less to-ing and fro-ing to synchronise diaries and agree venue.

There’s a time-efficiency element, too. With remote attendance, rather than having to hang around while the settlement agreement is being drawn up parties may be free to go off and do their own thing once agreement in principle has been reached – a WhatsApp message can be sent to let them know when the agreement’s ready to sign. Equally, solicitors – while remaining committed to the job in hand – can put themselves on mute should an urgent matter relating to another client arise when there’s ‘downtime’, and the mediator is with the other party.

While we’re still navigating our way out of Covid-19 the blended mediation approach can be particularly useful. For example I can see it being applied to disputes involving inter-generational family businesses and contentious probate where older participants – whether shielding or still cautious – would prefer not to mediate in person. And where parties are in different countries, remote mediation would surely be welcomed if it avoided air travel and mandatory hotel quarantine.

As a side note, I wonder how the English courts may view a refusal to attend a blended mediation. Will citing Covid be an unreasonable refusal and will this trigger the costs sanctions that follow? I somehow expect so.

Pick ’n’ mix flexibility

Like anything new and unexplored, blended mediation may take time to bed in. I can see that there may be concerns about the neutrality of the mediator should one party be wholly remote while the other party is mediating entirely in person. Remote attendees may worry that the mediator will spend less time with them or that they won’t receive the same level of empathy and trust as the in-person attendees.

To this I would say that neutrality is part of a mediator’s DNA. Mediators are adept at building rapport and with their proficiency in using Zoom or other video conferencing platforms there’s no need to fear that their impartiality will be compromised. Usefully, IPOS offer a complimentary walk-through on Zoom for participants who’ll be joining a mediation remotely. In part a familiarisation exercise on how the platform works, it’s also a good way for remote parties to get the measure of the mediator and to alleviate any concerns they might have about being treated differently to in-person attendees. If desired, this can also separately be offered to those who’ll be attending in person so they can do likewise and also see what the others joining remotely will experience on the day. (Taking my mantra of ‘getting people to see things from the other’s perspective’ truly to heart).

Of course, some parties may actively choose to mediate entirely remotely even when the Covid restrictions have been eased. They might feel less nervous than if they were at the mediation in-person, or simply prefer the comfort and familiarity of their own home or office to a venue. They might also feel more in control – they’re in command of the mute button and can make a cup of tea or go out into the garden to clear their head when they need to.

Remote or in-person – the beauty of blended mediation is that participants have the flexibility to be wherever they want to be. And with so many pick ’n’ mix options available, blended mediation suits all kinds of disputes, large or small, national or international. As the government sets out to ‘Build back better’ post-Covid, I believe blended mediation could be here to stay.

Rebecca Attree has been appointed as a Visiting Lecturer at the Faculty of Law, University of Trento, Italy.

She gave her inaugural lecture entitled “Resolving Disputes in the UK and Internationally – the Art and the Science” in April 2021 online to more than 100 students. The lecture was part of the Dispute Resolution Mechanisms Module for Undergraduates in Law and was introduced by Prof. Silvana della Bonta. Rebecca speaks fluent Italian, but was asked to give the lecture in English. It can be viewed here.

Trento University has established a Conflict Managers of Tomorrow Project, that is intended to inspire and develop students to become mediators. They have written a book on Mediation and the ICC Mediation Competition that Rebecca (a former judge and author of role plays for the ICC Competition) has reviewed. The review and a link to the e-book can be viewed here.

Rebecca is delighted to be playing a key role in helping to develop the next generation of mediators.

What is the price for peace?

It’s a question that a good mediator will explore before and during mediation. And it’s a question that legal advisors should consider, too. What is your client’s price of peace – and what is the opposing side’s price of peace?

The ‘price’ may be purely monetary, and calculations will take into account the cost of alternatives – commonly litigation and arbitration – and the risks involved, plus factors such as time and resources required to pursue legal action and potential reputational damage. But the ‘price’ may not be financial at all. Less tangible but possibly more valuable, the price might be an apology, an amendment to an existing contract or an agreement to change working practices going forward. In one multi-party competition law mediation I was involved with, the parties agreed to release a joint press statement as to how practices would be changed going forward, in return for the CMA agreeing to desist from taking regulatory enforcement action.

In another example concerning an Inheritance Act Claim the beneficiaries apologised to the claimant on a without prejudice basis for alleging the claimant was merely a tenant of the deceased and had no personal relationship with the deceased (the couple, though not married, had lived together as husband and wife). As a mediator I explored with the beneficiary siblings the fact that these allegations were made purely to advance the defence to an Inheritance Act claim but that they had caused enormous distress to the claimant, who was said to be deeply in love with the deceased and had cared for her during a long illness. The giving of the apology at an early stage of the mediation allowed settlement discussions to progress when previously they hadn’t been possible.

Fighting for legal costs

Sadly, a vindictive party may want to extract the ‘price’ of seeing the other side suffer in order to carry out the settlement terms (although of course a solicitor may not act for a client driven by malice). This may occur, for example, where one party insists on recovering their legal costs on as full a basis as possible in addition to the principal sum.

As a mediator, it’s important to sense when legal costs are an issue and to realise there may even be a split view within one room as between solicitor and their client. In this case possible approaches are to have a global sum offered, and to leave it to the client and solicitor to agree together how to apportion the payment, or for the parties to agree the substantive sum with costs to be assessed (less desirable as a complete outcome isn’t achieved at the mediation). It may be necessary for the mediator to explore in each room why there’s a significant difference between the costs of each party so a greater understanding of what a fair outcome might be can be achieved.

Lawyers and the price of peace

Of course one party’s price for peace may be quite different to what their legal advisers say their entitlement should be. And so it should be. While in most commercial matters there are legal remedies, business people are at liberty to ignore them, choosing perhaps to put the matter to bed and get on with exploring new opportunities using the time and money they’ve saved.

Lawyers shouldn’t be surprised when a client doesn’t follow their legal advice on the day of mediation. Frustrating as it may be, that advice is just one of many factors being considered by the client when deciding whether and at what point to settle. Being a sounding board can be an important role for an adviser during mediation and it may be helpful to talk about options with the client when the mediator isn’t in the room. Allow the client to work through their options with you and be ready to support them in the decision-making process.

Likewise, parties should listen to their advisers but have confidence in their ability to make their own decision. Only they can truly appreciate the dispute in the context of their commercial and personal goals so give clients freedom to be bold and brave. And never forget the importance of that simple question – ‘What is your price for peace?’

Book Review: Edited by Prof Silvana Dalla Bonta

Le parti in mediazione: strumenti e tecniche. Dall’esperienza pratica alla costruzione di un metodo.

I have had the pleasure of collaborating with the Faculty at the University of Law in Trento and in particular the innovative Conflict Managers of Tomorrow Project, pioneered by Prof. Silvana Dalla Bonta. As part of this collaboration I have had the pleasure to read this publication[1]. It is written in both Italian and English as it is the result of the project’s long experience in training and coaching students in both languages.

It is a very thorough, detailed and clear analysis of conflict resolution, particularly aimed at students attending mediation competitions. It should be essential reading for any team thinking or preparing to compete. It actually should have a broader audience and has much to inform anyone involved in conflict analysis and dispute resolution, whether lawyers, mediators or parties in dispute.

The publication adopts a practical approach, with contributions from both academics and practitioners. Great store is placed on preparation, both on the part of the lawyers and the parties. This is the case for any real- life mediation. As an author of a role play case study for the ICC[2] used in a semi-final at the competition I found the incisive advice as to how a student should read, analyse, dissect and work through a role play invaluable for anyone preparing for a mediation competition, or indeed planning to engage in mediation. Advice on how to engage with the mediator is illuminating – many mediation advocates would be well served to read this. The advice is given in the context of the ICC competition where parties are encouraged to remain in a plenary session and opportunities for caucuses are limited by the rules. This makes it more pertinent to those reading from jurisdictions where joint sessions are the norm (such as Germany) rather than say the UK and US where for commercial mediations private caucuses are very prevalent.

In addition to the varied topics covered there are comprehensive bibliographies at the end of each chapter which provide excellent springboards for those wanting to research further. The authors have consulted many of the great works on the subject across the globe in a variety of languages and incorporated concepts from different jurisdictions. This makes the work truly international.

Aspects of cross -cultural communication and psychology are also considered and dealt with sensitively and from a global rather than Italian perspective. A useful addition if the publication were to go to a second edition would be a full chapter dedicated to the psychology of conflict, as this forms an important part in negotiation and mediation. A further future addition would be a chapter on online mediation, given that the 16th competition held in 2021 was entirely online. But, of course, it takes time for publications to keep up to date with changes to practice due to world events such as a pandemic.

The inclusion of a real- life experience from a participant at the ICC Mediation competition is invaluable and encouraging. In common with most skills training, the importance of practice and having a “can do” attitude is emphasised. As a judge myself at the competition, I was heartened to read how valuable the feedback from the judges to the teams was and how much the participant felt they improved during the competition as a result of this and the “hands on” practice they gained.

As the old Chinese proverb says, ‘Tell me and I’ll forget; show me and I may remember; involve me and I’ll understand.’  The practical approach to teaching conflict resolution at the University of Trento is exemplified by its enthusiasm for its students to participate in mediation competitions. Further the creation of this excellent publication that serves as a textbook to assist those students in this experience is laudable. Prof Silvana Dalla Bonta and her colleagues are doing excellent work in developing Conflict Managers of Tomorrow, people we are likely to need increasingly, and who cannot be replaced by AI and the many other technological developments we are seeing in the world. 

Congratulations to the team from the Faculty of Law, University of Trento, Italy, for winning the Special Award for Best Creative Solution Generation at the 16th ICC Mediation Competition in February 2021.

Rebecca Attree M.A. (Cantab) International Mediator and Solicitor, London 2021. Visiting Lecturer at faculty of Law, University of Trennto, Italy.

[1] Translated loosely as “The parties in mediation: instruments and techniques. From practical experience to the construction of a methodology.”

[2]ICC International Mediation training Role Plays 2015

News Alert: The Singapore Convention on Mediation came into force on 12 September 2020…

But what does that mean for those settling disputes in the UK and under English law? The UK has not signed the Convention so surely it has no effect?

It may do. This is because the Convention applies where two parties based in Europe mediate and the place

(i) where the settlement agreement is to be performed; or

(ii) where the subject matter of the settlement agreement is most closely connected

is in a State that has signed the Convention.

Therefore, the Singapore Convention, unlike for example the New York Convention on Enforcement of Arbitral Awards, is not based on reciprocity and can be availed by UK disputants in some circumstances even though the UK has not signed or ratified it.

Should the UK sign and ratify the Singapore Convention?

From many dispute resolution lawyers’ and mediators’ perspectives it would be a good idea if the UK were to do so. It would give enhanced rights of enforcement of a wide range of UK-related mediated settlement agreements. It would also enhance the perception of the UK as a major mediation and ADR jurisdiction.

Which countries have signed/ ratified it?

The UN Convention on International Settlement Agreements Resulting from Mediation (known as the Singapore Convention on Mediation) opened for signature on 7 August 2019 and was signed by a record breaking 46 States. As of 1 September, it has 53 signatories. The Convention came into effect six months after ratification by at least three contracting states (Singapore, Fiji, Qatar, Saudi Arabia Ecuador and Belarus have done so to date).

46 States signed the Singapore Mediation Convention, including importantly the US, China, India, Malaysia, the Philippines, Singapore and South Korea. Notably, the UK, the European Union and Australia have not yet signed the Convention. It seems that the reason why the EU has not yet signed is because a question of process as to whether individual countries or the European Union will sign remains to be resolved. In any event given Brexit the UK would now need to sign separately. There has been a short consultation by the UK government as to whether it should sign but no results issued yet…the government probably has more pressing problems on its hands…

What does the Convention provide?

The Convention’s aim is to formulate and implement an international framework for the enforcement of mediated settlements. It provides a process for the direct enforcement of cross-border settlement agreements between parties resulting from mediation. This allows the party seeking enforcement to apply directly to the courts of the State where the assets are located. The relevant authority may refuse to enforce the settlement agreement in limited circumstances.

When does it apply?

The Convention will only apply where the settlement agreement:

  • is in writing;
  • results from a mediation;
  • is an agreement between two or more parties who have their place of business in different States; or
  • the place of business of the parties to the agreement is different from either:
    i. the State in which a substantial part of the obligations of the settlement agreement is performed; or
    ii. the State with which the subject matter of the settlement agreement is most closely connected.

When does it not apply?

The Convention does not apply to settlement agreements:

  • relating to consumer transactions nor to family, inheritance or employment law;
  • that have been approved by a court or concluded in the course of proceedings before a court and that are enforceable as a judgment in the State of that court; or
  • that have been recorded and are enforceable as an arbitral award.

Any tips for a lawyer going with a client to a mediation to which the Convention may apply?

Consider whether the Singapore Convention may apply to any settlement agreement that may result. If so:

  • The mediator should sign the settlement agreement or a separate document to confirm that the settlement was reached through mediation;
  • If a settlement is reached shortly after the main mediation session, consider reciting in the agreement it was entered into following a mediation.

This is because under the Convention the enforcing court must be satisfied the settlement agreement arose from a mediation.

  • Take particular care to draft the settlement agreement so it will be easily understood by any overseas court. Make sure statutory references are made in full, for example. Spell out in detail the meaning of any legal concepts particular to English law or the common law. For example, the concept of a trust is not easily understood by a civil law jurisdiction. Also bear in mind rules on legal costs recovery vary enormously from one jurisdiction to another.
  • Consider whether any aspect of the settlement agreement may not be capable of being enforced in the relevant country due to conflict with local public policy or other overriding provision. For example, an agreement under English law that is not Shariah compliant (say where interest is payable) may not be able to be enforced in a Shariah based jurisdiction. The deal may be re-structured in such a way that a similar, Shariah compliant outcome is achieved.

Does the Convention serve any broader function?

Some say the success of the Convention will largely depend on the extent to which it is accepted and ratified by States. It does in any case serve to raise the profile of mediation as a credible method of alternative dispute resolution for cross-border disputes. Has the Convention increased confidence in international mediation? Probably, although only one year in, it is probably too early to say for sure, especially given the impact of Covid-19.

How may UK Mediation Agreements be enforced internationally at the moment?

Currently, many settlement agreements can be recognised and enforced across the EU under the EU Mediation Directive. This will end on 31 December 2020 from the UK perspective when the Brexit withdrawal period finishes, unless specific legislation is negotiated (that is looking increasingly unlikely).

The use of Med Arb can according to some jurisdictions (notably Singapore and New South Wales, Australia) create a settlement in the form of an arbitral award enforceable under the New York Convention on the Recognition and Enforceability of Arbitral Awards. Med Arb is a process whereby it is agreed from the outset either

  • if a mediation does not settle, the dispute is immediately determined by arbitration or
  • that the settlement reached at mediation will be handed down as an arbitral award.

This approach is not considered mainstream from a UK perspective and has a number of drawbacks that are beyond the scope of this article to consider.

At the time of writing, some 160 States have signed the New York Convention.

International Mediation – what is the way forward?

A positive consequence of the pandemic is the increase in online mediations, and peoples’ appetite to use them to settle disputes. These are particularly suited to international mediations given they can be set up quickly and easily at a relatively low cost. Parties and their advisers can attend from their offices/ home or even car. All they need is a computer/ tablet or a phone and an internet connection.

International Conventions such as the Singapore Convention are a welcome adjunct further to increase confidence in international mediations. Whether the UK government signs it or not, the take up for international mediation is exponential.

As an important aside perhaps mediation communication skills could be put to good use in the UK to agree how best to deal with Covid-19 and obtain “buy in” from the British public to them. They could also come in handy in the negotiation of the UK’s Brexit from Europe. But then perhaps this purist mediator who would like mediation skills to change the world should narrow her ambitions and be content with simply carrying on with the eminently satisfying day job of assisting parties to find a solution to disputes satisfactory to all.


Rebecca Attree 6 Oct 2020

What does it take to be a good Mediation Advocate?

Litigation solicitors and barristers, how can you be a good mediation advocate? Some might say that you’ve either got it or you haven’t – but I believe that mediation advocacy skills can be developed and honed.

Go beyond the legal position
Going into a mediation with a client is about seeing the negotiation from more than just the legal position. I liken it to putting on a pair of 3D glasses because you’re no longer looking at things two dimensionally. Of course, a solicitor or barrister is there to give advice on the legal rights and the strength of the legal position. But during a mediation their client will be mulling over a number of other factors, such as the company’s reputational issues and its appetite for risk, as well as personal considerations – how would they otherwise like to spend their time, or how soon they’d like to sell their business or retire for example.

Part of the mediation advocate’s role is to encourage their client to think about all these elements. Daniel Kahneman, author of Thinking Fast and Thinking Slow, says the best decisions are usually made quickly – and those decisions are frequently made intuitively when someone has all the pieces of the jigsaw puzzle in place. A mediation advocate needs to learn to step back and say ‘Look, I’ve given you the legal advice, now it’s for you to make up your mind.’

Start as you mean to go on
The joint open session is the perfect opportunity to set the right tone for reaching a settlement. Here again, a mediation advocate should be mindful about not being too forthright on the legal issues and the strength of their client’s position in law. Instead of addressing these issues in detail, the advocate can use their five minutes to make a persuasive opening speech on how they wish to progress with the mediation and the areas to explore.

The simple statement made across a table or in a Zoom video call: ‘We know this has been a long-running dispute, but my client is here today with a view to settle and in good faith hopes that can be achieved’ is a powerful one.

Keep the negotiations on track
It’s very easy for people to lose track of time during mediation. As a mediation advocate, you can take note of when an offer has been made, how long it has taken for the other side to come back to you and what the response was. It’s not about speeding things up but keeping an overview of the negotiation process.

Tracking things in this way may show how a pattern of concessions is developing or might give insight on how to manage your client’s expectations in relation to a deal. Equally, it may highlight a need to change tack when one way just doesn’t seem to be working. Sometimes a party can get very focused on one particular direction and an advocate can use lateral thinking to ‘expand the pie’ working alongside the mediator and help the party see that there are other options.

Crunch the numbers
When it comes to risk assessment and fallback positions, a mediation advocate armed with a calculator is a wonderful thing.

It is helpful to talk through with the client in front of the mediator their fall-back positions if the case doesn’t settle. So, a reasonable assessment of probability of success in court on the claim and the counterclaim as well as the costs risks. As a mediation advocate, a useful tip is following that discussion to have the three key figures – the bottom line of the best, worst and most likely outcomes – written on a Post-It note in front of your client so they can quickly compare numbers as offers come in.

One barrister I know, also a trained accountant, brought a an Excel spreadsheet along to a mediation for a shareholders’ dispute that involved the valuation of shares. Every time the offer changed, the barrister was able to run the figures through the spreadsheet to get an adjusted share value and could say to the client ‘Right, this is what your risk profile now looks like.’

Be ready for the finishing line
A day of mediation can be tiring so you’ll need something in reserve for drafting the all-important settlement agreement. You can avoid ‘blank paper drafting’ by bringing along templates, such as a Tomlin Order and draft Schedule, that are already topped and tailed with the case details. And if there are certain things you think might happen – that it’s going to be necessary to have an escrow account, for example – you could pre-prepare the relevant wording or clauses.

That’s not to say you should put in work that may not be needed (and in the process front-load the costs for your client). It’s more a case of thinking about the settlement draft as the day progresses and using any available ‘down time’ when the mediator is in the other room to start putting the necessary wording together.

Have a joke to hand
I’m not being flippant. Both you and your client will welcome occasional breaks from the intensity of the day. I sometimes say to people when I come back into their room ‘I do hope your lawyer has been entertaining you’ or ‘I do hope you’ve discovered something funny about each other.’ A stash of chocolate biscuits is good for keeping up energy levels. And one lawyer I know always suggests to their client taking a short walk together in the middle of the mediation – good for stretching the legs as well as sparking fresh thinking. Just so long as they let me know and come back on time, I’m all for it!

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