Negotiation is an everyday activity for lawyers, and many would rightly regard themselves as excellent at this part of their job. Yet we all know any negotiation can become deadlocked and that disputes can arise which are hard to resolve or that can escalate into crippling claims and costs.
Thanks to the Civil Procedure Rules mediation is a familiar concept to legal practitioners but that does not mean it is currently being used as often – or as early – as it could. This is a pity as the great majority of mediations settle disputes on the day of the mediation and more still within a few weeks of the issues being explored. At its most basic an early mediation offers a unique process for effective ‘strategic’ review of a dispute and its attendant risks.
Safety first
We lawyers are, by nature and necessity, risk averse. Yet there is very little risk for lawyers when it comes to mediation. As a needs-based process, with outcomes ultimately in the control of the client, mediation stands a better chance of giving clients what they want, rather than an imposed decision. Mediation is quicker than a trial, normally running for a day which means it is less expensive for the client. These benefits, along with others, mean that lawyers will be more likely to keep their clients both satisfied and solvent - which are the keys to repeat business, recommendations and future referrals.
Earning trust
However, the quality of the mediation you receive all comes down to the appropriateness of the mediator used on your dispute. In order to ensure this there are a number of questions it is advisable to ask yourself when recommending a mediator for a case:
• Are they trained to the highest standard? A surprising number of lawyers instruct mediators with no formal mediation qualifications just because they are well known in that sector. The quality in such mediations can be variable.
• How do you check their recent performance in mediations? Mediation is a skill that is developed and enhanced with use, yet is the mediator subject to continual feedback on their performance so that their skills are refined? Using the same mediator repeatedly can be potentially hazardous, as staleness and over-familiarity can set in.
• Do they have strong relevant professional experience (important when a case is complex and high value) or is cost-efficiency the most pressing requirement (in which case an up-and-coming mediator might be the right option)?
• Will your client (and the other side) be able to work with that mediator and their particular mediator style or personality? What attributes are important, being able to put people on edge at ease or challenging entrenched positions? Do some basic research into the personality you are selecting because being a respected expert in their field does not mean a mediator will not “put your client’s back up”.
• How much time will the mediator spend preparing for your case? How much effort will be expended following-up after the day to ensure all elements of the deal are finalised? Clients do not just want a process; they want engagement from a mediator. This requires good preparation and excellent follow-up because the reality of many disputes is they need consistent commitment – not just turning up on the day.
• Do you want a narrow-lawyer focus or someone with broader commercial experience and ‘nous’? One of the strengths of mediation is that it can go beyond immediate legal issues and risks, finding creative and commercial solutions more appropriate to the needs of the parties.
• Do you want to spend months of wrangling (with associated costs) over the identity of the mediator. Agreeing to go to a reputable mediation provider can simplify appointment choices and save clients costs.
Current impetus
There have been many recent developments which show that mediating will become more essential for lawyers in the near future.
Jonathan Djanogly MP, the Ministry of Justice’s ADR Minister, speaking in May 2011 at the Civil Mediation Council (CMC) Conference in Manchester has promised the biggest shake up to the civil justice system since the Woolf Reforms. A commitment by the government to reducing massive debt, means that an accessible, efficient process like mediation is the ideal tool to help do that in civil justice.
Other developments bringing mediation to the fore in recent months include:
• The Ministry of Justice’s consultation “Solving disputes in the county courts” is an opportunity for mediation to go further than before: “information sessions” to encourage mediation in every claim under £100,000 and automatic referral to mediation for claims under £15,000 are being considered.
• The Department of Business Innovation and Skills have consulted about greater use of mediation in all employment disputes as an alternative to tribunals.
• The implementation of the EU Directive on Mediation for cross-border disputes is now live – mediation is now mandatory in Italy, encouraged in Germany and enshrined in Ireland. The implementation, which has come into force in the UK, creates a different climate for resolving European disputes.
• UK Trade & Industry has announced with the Ministry of Justice it will work to make the UK the world centre for mediation (along with arbitration and the courts). All of these moves create the potential for a new chapter in the way in which disputes are resolved and the way mediation is accessed.
Getting the best deal
In the current economic climate and legal market it can sometimes feel as if lawyers are under mounting pressure from every quarter – competition, reforms and tight budgets combining to make work and survival harder. Using mediation to resolve disputes should be regarded as a positive financial and client-relationship aid to legal practice in these difficult times. It might even increase your capacity for the number of disputes and clients you can work with.