The latest trends in Mediation
Every year the mediation marketplace changes, sometimes in larger ways and sometime more subtly, reflecting or interpreting trends in the wider legal market and economy. In this overview five mediators explain how the cases they see are changing and importantly what that means for parties and advisers that are considering how, and if, they might best engage in the mediation process.
Contract disputes are no longer just about the detail, by Heather Allen
In mediating commercial contract disputes, in recent years I have noticed that the very best lawyers at mediation are highly adaptable, offering advice in the context of litigation, or potential litigation, and also acting as trusted business advisers. Advisors weigh up with clients both legal and commercial risks, and help to create a wise outcome, including terms not available through the courts. They seem to enjoy the challenge and deliver accordingly. Mediators understand that for lawyers who are new to the process, mediation can seem daunting, demanding a significant shift in perspective from the lawyer. The very best mediators will work with the lawyers, complementing the work they are doing, offering discreet guidance to help them prepare and conduct business on the day effectively. There is no shame in coming to mediation for the first time, or in expecting the mediator to offer each lawyer support in providing a high-quality service to their clients.
Having trust can give you the best chance of success, by John Price
Party-to-party negotiation cases can reach deadlock not because of complex 'core' issues but because the parties do not wish to make any substantial concessions for fear of appearing weak. An experienced mediator will build rapport with the parties, demonstrating that he/she appreciates their legal, technical and commercial considerations. Having gained their trust the mediator can explore with each party, in the strictest of confidentiality, what they see as possible settlements. The more faith the parties have in the mediator the more open they are likely to be.
A mediator needs good antennae to spot the signals, sometimes faint, that concessions are available and to draw out exactly what may be on offer. A mediator can then overcome the 'who goes first' weakness by facilitating concurrent exchanges of offers. This can be a relatively swift process and 'burning the midnight oil' is becoming far less common with experienced mediators. I have recently had a large development dispute and a retail sector dispute - one full day allowed - settle within two hours of starting.
Internal disputes in the City have a different cut and thrust, by Frances Maynard
Reflecting on the past year of mediation there is what feels like an exciting sea change happening. For many years myself and others have been dealing with employment matters in the City which are in litigation where the mediations have involved large legal teams supporting their respective clients. We still do - but this year we are seeing many financial institutions asking for mediation at a far earlier stage in proceedings, before matters have reached the Tribunal and/or the High Court. This is because, I believe, HR functions and in-house legal departments have taken on board the messages given through conferences, demonstrations and training.
Grievances have been avoided, some departures managed with dignity, effective working relationships restored and valued employees retained. In the process much management time and money have been saved. People have been talking and that’s exciting!
Building success in the mediation market, by Nick Gould
Many industry sectors make increasing use of mediation to resolve disputes and problems and in the construction industry mediation is now widely accepted. More than a third of Technology and Construction Court cases settle through mediation according to King's College research "Mediating Construction Disputes: An Evaluation of Existing Practice", published 2010. The research reinforces the trend for disputes relating to construction, negligence and information technology to settle at mediation, taking place as early as the exchange of the claim and defence, and if not then at the time of disclosure. The cost of disclosure and review of these documents often reveals that a mediated settlement should be a priority for the parties in order to avoid trial. Most parties undertake mediation of their own initiative with very little court coercion and the cost savings can be substantial, with more than 50% of those settling at mediation and average savings in excess of £75,000.
Increased levels of insolvency during the recession has also meant that mediation has provided a good opportunity when perhaps little money is available to settle disputes early, regardless of the merits of the issues. Disputes in partnerships and joint ventures have been increasingly turning to mediation because it provides a confidential forum as well as an early, cost-saving resolution.
Mediation is the right medicine, by Fiona Colquhoun
We work in challenging times in the UK and Europe; the pressures of the financial situation have created their own tensions and difficulties. In public sector and commercial disputes, mediation as a core process will always save costs and resources and, by its voluntary nature, assist in reaching resolutions which are in the parties' own control. As the National Health Service continues its programme of change, we now mediate between different NHS organisations, private providers and agencies on funding issues in dispute or renegotiating contracts. Other major areas of mediation growth are clinical negligence, employment disputes and patients complaints. Encouraged by government, mediation continues to develop. The training of managers and professionals in mediation and conflict management skills brings about a positive organisational culture, helping individuals and groups deal with difficult conversations and tensions at as early a stage as possible. This has been shown in work carried out within organisations as diverse as the United Nations, Local Authorities and commercial businesses of all sizes. Reconciliations or amicably negotiated agreements are far better outcomes than court judgments, where invariably neither side totally wins.