Overview
| Author | Stephen Walker/David Smith |
| Pages | 1-12 |
1.1 Introduction
In this chapter, we discuss some of the main features of the current mediation scene and identify some of the main themes of this book.
1.1.1 Mediation – a working definition
We have taken the following as our working definition of mediation: an informal, voluntary, confidential process in which parties to a dispute can, with the help of an independent intermediary, meet to work out a settlement.
An alternative definition from The Jackson ADR Handbook (the Handbook) is:
Mediation is a flexible, cost-effective, confidential process which can be arranged relatively speedily, in which a neutral third party (the mediator) facilitates discussions and negotiations between the parties in dispute within a relatively structured but flexible process, in a formal setting, during a defined period of time, all of which helps to create an impetus for settlement.
(Oxford University Press, 2nd edn, 2016)
Interestingly, it does not mention the word ‘voluntary’, and in our view does not therefore acknowledge one of the key elements in the value and success of mediation, which is that the parties are ultimately the ones who find the settlement and, to that extent, take ownership of it.
Mediation is a practical activity. It is not an art or a science – it is a craft. Mediators and representatives improve by actually mediating and thinking about what they are doing.
Mediation gives clients who are in dispute an opportunity to make peace not war.
In practice, if not in theory, mediations have three distinct phases:
1. Advocacy phase: where the parties tell the mediator and each other all the points they intend to make to the court if the case does not settle.
2. Problem solving phase: where the parties explore the situation to see if they have enough common ground and building blocks to build a platform for settlement.
2 Advising and Representing Clients at Mediation
3. Negotiation phase: where the parties, having decided that they have enough common ground and building blocks, move on to working out the final figures and wording.
The sooner the parties can make the transition from the advocacy phase to the problem solving phase the better chance they are giving themselves of settling on the day. Mediators want to generate momentum to assist in the transition. This is where representatives have such an important job to do in helping their clients participate in the process.
1.1.2 Mediation – Has its time come?
For many years at conferences, well-informed speaker after well-informed speaker has announced that the breakthrough for mediation is imminent, but it has not happened. At the same time, the number of people wanting to be mediators has increased and the government is investing more money in family mediation, but still the number of civil and commercial mediations remains low.
However, times are a-changing. That was the message that Professor Dominic Regan, one of the best informed and most entertaining commentators, delivered at the ADR Group Annual Conference in Oxford in December 2012. He gave two reasons:
1. Jackson reforms: the Jackson reforms came into force from April 2013. Jackson LJ is said to be a big supporter of mediation and has enthused the judiciary. More practically, the shifting of cost recovery, the court-approved costs budgets and the changes to Part 36 of the Civil Procedure Rules 1998 (SI 1998/3132) (as amended) (CPR) will mean that the cost of losing will be even harder to contemplate.
2. The end of the hourly rate: previous pronouncements about the end of the hourly rate have proved premature. However, clients increasingly demand fixed fees. Some firms have built a whole new business model for law services based on fixed fees. The switch to fixed or capped costs combined with the changes on recoverability of success fees and insurance premiums will mean that it is in lawyers’ interests to settle cases early. Lawyers’ resistance to mediation has long been identified as one of the main reasons for the delayed take-up, with alternative dispute resolution (ADR) being defined as ‘alarming drop in revenue’.
Do lawyers really want to settle cases?
This is a question that is often asked. We return to it in Chapter 7, para 7.4. Many litigating clients ask themselves whether their lawyers
actually want their case to settle because they will lose money if it does. Clients have always preferred cases to settle sooner rather than later – they know that the longer cases go on the more they cost. Now, perhaps, for the first time the financial interests of clients and their lawyers will be more closely aligned.
That was in 2012; what has happened since?
The mediation community continues to expand. There are more and more trainers who seem to make more and more money (although there have been notable casualties), while providers also proliferate. More students are taught mediation at university or on their professional practice courses and in an increasingly sophisticated fashion. Graduate qualifications and academic researchers multiply. There is an oversupply of mediators. Bloggers, commentators and journalists all keep busy. Is mediation going the way of arbitration and becoming a sclerotic and expensive alternative to litigation? Not yet, but some claim that there are worrying signs. The late Paul Randolph, a well-known mediation trainer and commentator, thought that mediation is like Communism – a big idea whose moment has passed. Unless mediation is made compulsory, it will stagnate and possibly wither. Some representatives complain that the mediation process has ossified (see Chapter 12, para 12.2.5). The mediation day has become a formulaic ritual. They are bored with it all. Barristers in...
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