FAQs for Solicitors

1. Isn't Mediation just another type of negotiation?
Yes and No. To the extent that Mediation takes place on a "Without Prejudice" basis and it seems relatively informal there are some similarities. Many experienced litigators feel they are already mediators when negotiating and that Mediation can add nothing to their abilities. If so, they misunderstand the nature of formal Facilitative Mediation and its power to achieve settlement. All litigators have experience of the 'round the table' meeting that didn't work because the parties and their advisers became entrenched in their respective positions and refused to give ground. What was missing was the help of a neutral third party to manage the process, tease out the real issues, break deadlocks and ease the parties to their own settlement of the issues.


2. Where does Mediation fit in with litigation?
Mediation is just another weapon in the armoury of the dispute resolver, along with litigation, arbitration, adjudication, etc.. It is not a panacea but it is a relatively new technique that can have dramatic results, and should be actively used by all litigation lawyers. Mediation is not suitable where a precedent or declaration is required, nor if emergency and/or injunctive relief is necessary.

The Civil Procedure Rules and an increasing body of case law make it vital for everyone dealing with dispute resolution to identify and deal with disputes appropriately and proportionately from the word go. The CPRs demand that litigation should be 'a last resort' and they actively encourage ADR/Mediation. A litigator ignores these facts at his/her client's peril. The courts are imposing penalties, usually via costs orders, where they consider clients or their advisers are failing to consider and advise on the use of mediation when this would have been appropriate and saved time/cost. Some of the court decisions have been draconian and the most noteable have penalised even  winning parties, who the court felt should have used mediation, leaving the client with no more than an expensive pyrrhic victory. There is no sign of any softening of this approach.


3. When should Mediation be used?
Increasingly, as advisers have become more familiar with its use, Mediation is being used before litigation starts, but many Mediations take place during court proceedings particularly when the court stays proceedings for a period to allow this to happen.  Mediation brings the 'on the steps of the court' effect forward, to enable settlement to be achieved sooner.

There are times when the parties don't have sufficient information or the dynamics are wrong for negotiation to take place. In this situation it will probably also be inappropriate to Mediate.   Lawyers, however, need to remember that clients want disputes behind them and to get on with the rest of their lives as soon as reasonably possible. In most cases they would prefer a robust commercial settlement now, rather than take the risk of wasting time and money chasing the illusion of a 'perfect' result at court.  Even when clients 'win' at court they have usually been through an experience they would not wish to repeat.

Every case is different, but as a rule of thumb Mediation should be considered as soon as the parties can start negotiations .


4. Does Mediation work?
Yes. Our experience, from both acting as a mediator and representing clients in mediations, is that Mediations achieved about an 80% success rate. Even this figure doesn't reflect the true success rate as a substantial number of the few Mediations that 'fail' on the day are settled within the following few weeks. Also, almost without exception even the few failures will have substantially narrowed issues and moved the process forward.


5. Won't the opposition just use Mediation as a 'fishing expedition'?
This is a fear of some litigators who have not used Mediation, but experience shows that it is really a myth. We are now, with the CPRs, in a world where laying cards on the table is demanded and keeping them close to the chest actively discouraged and carries penalties. Mediation is 'without prejudice' and you and your client have far more to gain from its opportunities than you are likely to lose from any risks. Unless there is a genuine and real fear of this in a particular case don't let it put you off Mediation.


6. What part do I play in Mediation?
Because the Mediator gives no advice nor makes any decisions on the merits the parties must have access to all the legal, financial and other advice and representation they need on the day. A solicitor 'advocate' can provide enormous help particularly when actively seeking an appropriate resolution to the dispute with their client. This can be a far more challenging and demanding role than is at first expected.


7. Mediation is just a soft option to litigation?
You couldn't be more wrong! Mediation does not involve finding the middle ground between the parties, although in some cases that might be where everyone ends up. It takes a great deal of time and effort by the parties and their advisers, and much hard bargaining and stress. It is no soft option to move those involved from entrenched positions to a signed agreement dealing with all issues in just a few hours.    Mediation often resolves in a single day a dispute that has been going on for years.


8. Why do you say mediation is good value for money?
Clients do not enjoy dealing with disputes and they dislike litigation even more. They don't want to be involved with the legal system if this can be avoided - it is a 'distress purchase'. They put a high price on the peace of mind that comes from sorting things out, knowing where they are, and being able to get on with their life and do their normal work again. Any technique that can provide this fast, and at reasonable price and risk, is seen as being excellent value for money. Mediation delivers this in most cases and solicitors should offer the opportunity of it to clients whenever this is appropriate. Making a recommendation that can provide such benefits can only reflect well on the adviser.


9. Who do I contact if I want to find out more?
Please contact Christopher Butterworth