Why Mediate?
Mediation is a quick and effective way of solving disputes. I know, I have used it as a company director myself. A typical mediation lasts a day, but it can take less. It can be set up within days or weeks. It is confidential. At mediation the parties remain in control of the settlement terms. It costs much less than going to court. These are the reasons most parties are satisfied with the result they achieve in mediation than by litigating.
Creative Solutions
A mediation settlement agreement can achieve a range of creative solutions, and at best, may create a new way of dealing for the parties. For example, an agent may agree with the principal to become a distributor. Parcels of land in boundary disputes may be swapped so that enjoyment of the land is enhanced for both parties. The nominee share in an inherited family business may be transferred to a more appropriate person. Sometimes an apology is wanted, as well as a monetary payment. The parties may agree to donate sums to charity rather than to pay the other in full. In a workplace mediation, the parties may agree new ways of communicating and working. By contrast the remedies available pursuant to a court order are often limited to damages, an injunction, or an order for specific performance. These solutions may not be what the parties want or need.
What are the Chances of Settlement?
The statistics show that 70% of disputes that are mediated settle on the day, or soon after. Sometimes matters are too complex to resolve in a day, but the parties move significantly towards a better understanding of each other during the mediation and, with my continued support, will settle soon after.
What Will I Do as a Mediator?
My role as a Mediator is to help the parties analyse the problem and evaluate what a sensible settlement will be for them. I encourage them to look for creative solutions, to “think outside the box” to see if a practical answer acceptable to both parties can be found. In doing this I may probe deeper into people’s perceptions of the dispute to see if misunderstandings can be flushed out. I may also challenge any entrenched views that could look different with a fresh eye. I help parties put emotion in perspective so that they can analyse logically their respective situations.
I came to mediation after practising as a solicitor and seeing how important it is for clients to achieve their practical commercial objectives. I experienced mediation first hand as a party when a claim was brought against the property development company I am a director of. The matter settled at the mediation (I did not expect beforehand it would!). Seeing how the skills of the mediator saved us so much cost, time, energy and business resource inspired me to become an Accredited Mediator so I could provide that opportunity to others.
How Does Mediation Fit into the Litigation Process?
Mediation is an effective tool for litigation and in-house solicitors, and HR managers, especially when the parties are becoming entrenched in their positions. The courts, tribunals and litigation process in England and Wales now actively encourage litigating parties to mediate. Mediation can provide a more commercially acceptable solution overall than litigation. An agreement to mediate is a positive step forward towards resolving a problem and is rarely regarded as a sign of weakness.
Moving on to the Future
Being in dispute with others is emotionally and financially draining, as I know from personal experience. I hope that I can make a difference to people’s lives, workplaces and livelihoods by helping them to leave the past behind them, and move forward to a workable solution, leaving them free to build a positive future.
Face to Face
A typical mediation lasts eight hours and involves a series of meetings between the parties, their advisers if they are attending and myself. Usually we have a joint session with everyone present. This allows everyone to put a face to a name and say something about the dispute if they wish. I will run through how the day will work, and some of the ground rules of mediation, the most key being confidentiality. If people genuinely prefer not to meet I will respect that and it is possible for the mediation to be conducted with parties in separate rooms throughout. However nothing beats face-to-face communication and I encourage the parties and/or their advisers to meet at some time during the day, if not at the outset.
Shorter mediations, such as a half day, are available if it seems the dispute could be settled in this time. If the parties have not settled by the time allocated, it is possible to extend the time by agreement, to reconvene another day, or for my involvement to continue over the next few days on the telephone. Basically I offer whatever is needed to see the dispute through to settlement in a workable timescale.
Online Dispute Resolution
I offer mediation via online video conferencing using a secure platform, Zoom. This is particularly time and cost saving when the parties and their advisers are international, or geographically far apart.
I have experience in Online Dispute Resolution, and am an ADRg Accredited International Online Dispute Resolution (‘ODR’) Mediator.
It is important that all parties are comfortable with this method, if selected. With Zoom it is possible to have private video conferences, and look at documents and photographs on the screen together. There is a chat facility, and also all lawyers can work on one common settlement agreement simultaneously.
If lawyers are present at the mediation, they may attend from a separate location to their clients, or be with them (the latter is better if possible). The two most important features of a remote mediation as opposed to a face-to-face mediation are:
- Confidentiality – it is vital that only those who have signed the Agreement to Mediate attend the session;
- All involved give the session their full attention and do not allow themselves to be distracted by other matters when they are not actively involved on the video call.
I check the day before the mediation that all parties are comfortable with the technology chosen and that all telephone numbers and communication details work efficiently.
Telephone Mediation
In a telephone mediation, I set up a conference call that the parties and advisers can be invited to join and leave as appropriate. I have constant access to my e-mail so parties can e-mail me at any time with a message, documents, or request to join a conversation.
The two most important features of a telephone mediation as opposed to a face-to-face mediation are:
- Confidentiality – it is vital that only those who have signed the Agreement to Mediate attend the session;
- All involved give the session their full attention and do not allow themselves to be distracted by other matters when they are not actively involved on the telephone call.
Co Mediation
Sometimes I am asked to co-mediate. This may be where the parties want the mediators to have a balance of skills and understandings. These may be linguistic, technical, cultural, faith, gender or minority issues related.
I have co-mediated successfully with a number of mediators. The key is that the mediators know and trust each other. If this is something you are interested in, please ask me.
Mediation Advocacy
I also offer mediation advocacy services. This may be to parties who are not represented, or whose solicitor is unable to attend the mediation.
I have also worked alongside litigation solicitors as part of the team, bringing my inside knowledge of the mediation process and negotiation skills to the mediation.
In any of these cases, my role as a mediation advocate is to assist my client to prepare for the mediation. I then support them and their team to negotiate and find the most acceptable solution at the mediation.
Naturally as a mediation advocate I am unable also to be the mediator, who must be independent and neutral. I am however able to assist in the selection and appointment of a suitable mediator.
