When and How to Use Mediation
| Author | Stephen Walker/David Smith |
| Pages | 13-26 |
Use Mediation
2.1 Introduction
In this chapter, we discuss what makes mediation different and what are its advantages and limitations.
2.2 Alternative dispute resolution
Mediation is one of several types of ADR. This term is generally used to describe any form of dispute resolution that does not involve attendance at court. Some bodies say that ADR can also, and more accurately, mean ‘appropriate dispute resolution’ (Oregon Law School, which has an Appropriate Dispute Resolution Center) or ‘amicable dispute resolution’ (the ICC). It can certainly stand for ‘accelerated dispute resolution’ or ‘assisted dispute resolution’.
Other readily available forms of ADR are: arbitration, adjudication, early neutral evaluation (ENE) and conciliation. As with mediation, they all require the involvement of an intermediary. Negotiation is also sometimes included in the definition of ADR. This does not involve an intermediary and is stretching the definition of ADR too far. Mediation is, however, quite different to other forms of ADR, and lumping them together is misleading.
2.3 How is mediation different?
There are four main differences between mediation and other forms of ADR.
2.3.1 Non-judgmental
The classic formulation of mediation is that it does not involve one party being held to be right and the other party being held to be wrong. It is the only form of ADR that involves an intermediary and is non-adjudicative. Even in conciliation the conciliator provides information and advice. This is an important difference and one that the parties involved in mediation
14 Advising and Representing Clients at Mediation
frequently fail to appreciate. Parties often enter mediation expecting a mediator to actually decide or at least indicate which party is in the right. In fact, so the theory goes, this is no part of the mediation process and mediators will usually specifically avoid doing so.
In practice, many mediators do give opinions on the merits of a party’s case. This can be at the invitation of the parties or because the mediator practises evaluative rather than facilitative mediation. This is dealt with in more detail in Chapter 5, para 5.6. There is no doubt that some clients want the mediator to go, in Mayer’s phrase, ‘beyond neutrality’ (Beyond Neutrality (Jossey-Bass, 2004)).
2.3.2 Party-led settlements
Settlements flow from the parties themselves rather than from the mediator. Mediators, unlike judges or arbitrators, do not impose any form of settlement on the parties. They may express ideas as to how the dispute might be settled, even cajole, but they will never make the decision themselves. The parties must decide that they want to settle and on what terms. In effective mediations the best and most creative ideas for settlement should come from the parties, who will know the dispute and their needs better than anyone. They may be assisted by suggestions from the mediator on what to think about, but they come up with their own solutions.
2.3.3 Assisted negotiation
Mediation is really a form of negotiation between the parties. While not every negotiation is a mediation, every mediation is a negotiation. In reality mediation is assisted negotiation. At mediation there is an independent third party present who knows what is happening in both rooms. This makes it fundamentally different from a round-table meeting. Often, lawyers will respond to a request for mediation with a suggestion of a round-table meeting, saying that it will be cheaper. While such meetings may cost less, they generally deliver less. The value of a mediator and what they can bring to the process is being underestimated. In addition, the failure of a round-table meeting is then often used as a reason to refuse a future offer of mediation. The extra value brought by a skilled mediator should not be overlooked, as the courts have repeatedly said. For example Coulson J said in CIP Properties v Galliford Try [2014] EWHC 3456 (TCC):
A professional mediator, engaged at the right time in the process and in the right spirit of cooperation by the parties will often be able to resolve the most intractable case and save everyone a good deal of money, time and effort.
Or as Vos LJ said in N J Richard Ltd v Holloway [2015] EWCA Civ 1631:
… if one were to say to any accredited mediator that any dispute was too intractable to be successfully mediated, he or she would roll their eyes. No dispute is too intractable to be mediated.
All mediation representatives and their clients must remember at all times that a mediation is far more than a meeting simply to discuss the case.
2.3.4 Contractual settlement
A mediation which leads to a settlement results in a contractual agreement to settle, either by way of a settlement agreement or, if legal proceedings have started, by way of a Tomlin order. The fact that the settlement is essentially a contract means that the form of the settlement is only limited by the parties’ imagination and what they are prepared to agree to. This is one of the prime advantages of mediation over other forms of ADR and over litigation. All these other methods tend to be limited in what they can offer in order to bring a dispute to a close, and their focus is inevitably on money. For many parties, money is welcome but may actually not be what they really want. Mediation offers far greater scope for creative settlements that are able to get to the true needs and interests of parties and give them a settlement which they want and which works for them.
2.4 Does mediation really work?
2.4.1 Success rates
Mediators are often asked how successful mediation is. This is an area of some uncertainty with a range of figures being reported by different bodies. A recent study reported that 74% of mediations settled on the mediation day. The settlement rate rose to 89% if those that settled shortly after were also counted (Eighth CEDR Audit, p 5). The precise number of mediations taking place is hard to assess, but the number that relate to civil and commercial disputes is estimated to be around 12,000 in 2018, rising from around 10,000 in 2016 (Eighth CEDR Audit, p 2). The settlement statistics are about the same as those found elsewhere, so they are reasonably representative. It can be argued that settlement statistics are somewhat self-selecting as cases which have gone to mediation are those which are more likely to settle in the first place. It has also been argued that mediations succeed because the parties become exhausted. Even if this is the case, the settlement figures for mediation remain impressive.
16 Advising and Representing Clients at Mediation
2.4.2 Client satisfaction
Mediation is sometimes negatively described as a...
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