Conclusion - New Trends, Old Problems
| Author | Stephen Walker/David Smith |
| Pages | 193-201 |
Trends, Old Problems
12.1 Introduction
In this chapter we review:
• emerging trends;
• new approaches;
• old problems;
• key takeaways from this book.
12.2 Emerging trends
12.2.1 Joint opening sessions
Mediation trainers emphasise their importance and drum in the skills that are needed by both mediators and representatives at these sessions. For mediation purists and theorists they are essential to the mediation process. However, they say they are not just essential to the process, but they are also essential to the spirit of mediation. Unless the parties can sit together in the same room at the same time and say ‘Good morning’ and nod in agreement when the mediator asks if they have authority to settle and have come to settle then it is not a mediation.
In practice, more and more mediators and mediation representatives do not want to have joint opening sessions. They are seen as a waste of time and energy. ‘Let us get on with the negotiation’, they say, ‘we all know what the issues and the facts are.’
In summary, joint opening sessions are falling out of fashion. Are settlement rates affected? Apparently not, according to the Eighth CEDR Audit which records an 89% settlement rate. Nobody can insist upon having a joint session. Representatives can only request that one takes place, and if they don’t want to have one, they simply decline.
194 Advising and Representing Clients at Mediation
12.2.2 Position papers
These are documents prepared by the parties and sent to the mediator in advance of the mediation. They are usually also exchanged as described in Chapter 6, para 6.2.10. Different names are now used such as mediation statements, mediation documents, briefing notes, background papers. Using these different titles shifts the emphasis from the disputants’ ‘positions’ in the hope that at the mediation they will spend less time taking positions and more time discussing interests and needs.
Mediators used to be able to rely upon receiving position papers from all parties. Sometimes they arrived quite late and were often no more than a rehash of the parties’ claims or defences or statement of issues for use at a court hearing. Increasingly, parties are not bothering to prepare position papers and instead rely upon the pleadings or correspondence. When all parties agree to dispense with position papers no harm seems to be done. Mediators may spend a little more time getting to grips with the detail. But where one party decides to send a position paper and the other doesn’t, negative thoughts and predictions are soon generated. ‘If they cannot be bothered to produce a position paper are they taking this mediation seriously at all?’ is the usual response. Is it worth the time, effort and money of producing one? Yes, for the reasons given in Chapter 6, para 6.2.10.
On balance, spending the time, money and energy in producing a position paper is worth it.
12.2.3 Direct access barristers
More clients are seeking legal advice and representation by going to barristers on a direct access basis. Increasingly, barristers are attending mediations having been instructed in this way.
When they are, they do their job as mediation representative differently than when they are accompanied by an instructing solicitor. As might be expected, they behave far more like a solicitor who attends a mediation without a barrister. They act less like the team leader and more like a team player, although in times of pressure at the mediation they are prone to default to courtroom advocacy mode.
The more reflective barristers often say to mediators at the end of the mediation as they are walking back to the station together that it is different from being in court and they will have to get used to it or even attend some training! Apparently, the mediation training module in the Bar training does not actually include any advice on mediation advocacy.
Mediation representatives wanting some specific training should contact the...
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