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.