Essential Skills of Mediation for Lawyers, by Rebecca Attree
A Paper Prepared for the Libralex Meeting, Perugia, Italy, Updated 16.04.2013.
1.1 Why Mediate?
“Mediation is a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution.” (CEDR definition)
1.2 What are the Advantages of Mediation?
| Negotiation | Mediation | Litigation |
| Informal, private | Informal, private | Formal, public |
| Enforceable in contract | Enforceable in contract | Binding, subject to appeal |
| No 3rd party | Facilitative | Decision Maker |
| Result Mutually acceptable | Mutually acceptable | Imposed decision |
| Flexible process | Flexible process | Rules based |
| Focus on past | Focus on future | Focus on past |
Mediation is a confidential, goodwill procedure. It can help people save face. It can also achieve a win-win solution, that is acceptable to both or all the parties.
1.3 Selecting the Mediation Procedure and the Mediator
The Mediation Procedure
A mediation can arise in one of the following circumstances:
- The voluntary referral by all parties;
- The referral by one party to a mediation body who is asked to secure the involvement of the other parties;
- A response to a Pre-action Protocol, the Civil Procedure Rules, a Court Order or recommendation by a judge before trial or appeal.
Employment Law Issues:
The ACAS Code of Practice on discipline and grievance procedures introduced on 6 April 2009 recommends workplace issues be resolved informally and encourages the use of Mediation. Technically the Code does not apply to redundancy dismissals or non –renewal of fixed term contracts.
Selecting the Mediator
The Mediator needs to be agreed between the parties. The parties should select an Accredited Mediator with relevant experience. Expertise in the subject matter is less important than mediation and communication skills.
1.4 Referral by a Court to Mediation
Judicial Studies Board Referral Indicators
| Indicators | Counter Indicators |
| A result other than that possiblethrough a court ruling is desired | Both parties are unwilling |
| Speedy solution desired | Earlier mediation attempt failed |
| “Legal Proceedings fatigue” | Precedent desired |
| Long term relationship | Too great a power imbalance |
| Common future interest(s) | Cultural background no place for mediation |
| More litigations or conflicts | Legal procedure in which only acourt ruling can bring about asolution |
| Confidentiality important | |
| Other parties involved | |
| Long standing solution |
1.5 Submission to Mediation Clauses
Increasingly, references to negotiation and mediation are included in commercial contracts. For example, the parties may agree to negotiate:
“If any dispute arises out of this agreement the parties will attempt to settle it by negotiation.”
It is also worth considering including a mediation clause in agreements. See for example the model mediation clauses of CEDR and LCIA.
1.6 The Mediation Agreement
The Mediation Agreement is an agreement between the parties and the mediator setting out the terms upon which the parties agree to mediate. It is signed before the mediation.
1.7 Consider the Effect of Mediation (or not Mediating) on any Pending Litigation
Consider whether you need to apply for a stay of any pending proceedings. A refusal to mediate may result in a costs award against a party, even if they are successful at trial.
1.8 The Roles of Lawyers, Parties and Mediator
Solicitor:
Remember it is the client’s problem and a dispute will only be resolved when the client is ready to resolve it.
Help the client to analyse the source of conflict, identify their needs, and explore settlement options.
Believe in the mediation and convince the other parties to believe in the mediation.
Mediator:
Facilitate, probe, reality test, and communicate when requested with the other side. Look for overlap between the parties’ interests.
Party:
Take responsibility for the dispute and actively seek to achieve a settlement by considering the matter from the other side’s point of view
Barrister:
Work with the solicitor, research points of law, advise on Settlement Agreement
1.9 Barriers to a Successful Mediation
There are many barriers to achieving a settlement at a mediation. These include:
People like to feel they are right.
Shame and guilt – money may be used as a weapon.
Lawyers are trained to fight.
People like to feel ‘important’.
1.10 Mediation ‘Rules’
It is a goodwill process
All discussions are on a ‘Without Prejudice’ basis
All discussions are confidential, unless the party expressly agrees otherwise.
The party attending the mediation must have authority to settle
The mediation will consist of a mix of plenary and caucus sessions.
Preparing Yourself and Your Client for a Mediation
2.1. Choosing Mediation / Being Told to Attend a Mediation:
It is important that you and your client have faith in the process.
Choose a mediator- do you want a lawyer? Layperson? Same field of law?
Sell it sensibly but positively to your client; explain court (and costs) versus mediation (and costs) also best-case and worst-case results from both
Explain it is a goodwill process/ confidential/ without prejudice (explain what this means)
2.2 Pre Mediation Contact:
Your mediator will contact you before the mediation. Run any concerns you have by them briefly (your client may have certain stipulations / geographical concerns about distance of venue/. Do not try to get the mediator on your side.
Consider whether the mediator should be asked to read all, or parts of the file.
Fill in and return the mediation agreement
Find (or agree) a mutually acceptable venue and date
Agree mediator fees/ how they will be split/ when you will pay (on the day? Post invoice?)
Consider instructing Counsel
2.3 Preparing Your Client:
Remind your client this is a voluntary process
The day will be a mixture of plenary and confidential caucus sessions with the mediator
Consider with your client their best alternative to a negotiated agreement (BATNA) and worst alternative to a negotiated agreement (WATNA)
Consider with your client strategies, settlement options and ranges
Discuss what your client wants from the day; what would be ‘good enough’ for them?
Will they be bringing anyone with them?
Do they have authority to settle?
How much time can they give to the day?
Go through a case analysis with your client. What are the factual and legal strengths and weaknesses.
Tell your client it is wise to refrain from standing on their principles.
Advise your client if they get to a good resolution it is more likely they can do business together again in the future.
Remind your client of the consequences of not settling.
Consider confidentiality
2.4 Preparing Yourself and Your Client for a Mediation Position Statement:
Prepare your opening statement together with your client. It should be no more than 1-2 pages describing how you see things and setting out any progress that has been made thus far. Avoid legal arguments (this is not the arena); try to simplify the case to its basic components. Try to include something new or not previously discussed with the other party. Say if you have tried facilitating negotiation or mediation in the past.
2.5 On the Day:
Your mediator will arrive ahead of time, and will ensure a good room set up for a plenary session, plus break-out rooms.
The mediator will greet the parties and ‘set the tone’.
The mediator will set out the rules of the day.
Your mediator will ask all parties to make their opening statements; traditionally she/he will ask the claimant to make their opening statement first.
Decide whether you or your client delivers your opening statement.
Prepare your client that things might go slowly.
Advise them to refrain from insults, infighting – the purpose of the mediation is that it will give them space to have their say.
Your mediator will then split the parties and start ‘caucus sessions’, with each in separate rooms. He/she will go back and forth in this series of confidential private meetings until he/she considers they can (or cannot) bring you back together if an agreement looks likely (or does not). This is a very flexible system depending on the level of emotions etc.
If you get stuck it might be worth reminding your client that it is the dispute that is the common enemy, not the other side.
Be collaborative.
You may want to mediate on just one small part of the whole. Reaching agreement on just one clause can be seen as a success.
If you reach agreement, it is best if you or your barrister draft a heads of agreement or a settlement agreement on site at the end of the mediation for signature by the parties before they leave.
2.6. Settlement Agreement
Consider preparing in advance a draft Setttlement Agreement or Heads of Agreement, or clauses for insertion in them.
2.7 The Mediation Process
Usually consists of an opening joint session, private sessions, and a closing joint session.
The parties start in a contentious position, then hopefully move to a problem solving mode before ideally achieving a settlement.
During this process, the Mediator will help the parties to:
- gather information
- identify issues and/or problems
- generate and evaluate options
- select options
- reach an agreement
2.8 If at First You Do Not Succeed…
The average success rate of mediations is 70 – 80%. However if a mediation does not settle on the day, do not give up attempts to settle it. Many mediations that do not settle on the day settle shortly thereafter. This is because the mediation process has enabled the parties better to understand each others’ point of view and a little more time is needed.
Recommended Reading List
ADR and Commercial Disputes
General Editor – Russell Caller (2002) Sweet & Maxwell
(ISBN 0421763000)
ADR, Practice and Principles
Brown, Henry & Marriott, Arthur (1999) Sweet & Maxwell
(ISBN 0421579609) (726 pages)
The ADR Practice Guide: Commercial Dispute Resolution
Mackie, K, Miles, D, Marsh, W & Allen, T (3rd Ed, 2007) Tottel
ISBN 987-1-84592-314-3) (364 pages)
