Mediation is a non-court-based dispute resolution process, most commonly referred to as an alternative dispute resolution (ADR) process. For any mediation to be effective the right people need to attend. Typically, your mediation team should include a decision maker, someone who knows the factual situation and your legal adviser. Here we explain why good mediation preparation should include considering who should make up your team.
A decision maker
Mediation agreements will include a provision that requires parties to attend the mediation with at least one individual who has full authority to settle the dispute. If this person is not present, the mediation may well end up failing to result in a concluded settlement. Sometimes a client’s representative at a mediation will not have unlimited authority to settle but will be operating in accordance with a mandate which places parameters on what can be agreed on the day. This is typically the case in professional negligence disputes where ultimately it is indemnity insurers that will be paying over the settlement monies. A corporate client may also have pre-agreed parameters for settlement. In the case of a dispute over a family business, a family member may want to consult with a spouse and/ or other family members before accepting or rejecting a final offer.
It is not uncommon for there to be some constraints on at least one and probably both parties in terms of what can be agreed. Always ask the question when arranging a mediation – who is attending and what is their authority to settle? It is important to establish the framework within which the parties will be negotiating on the day to ensure the mediation will be as effective as possible.
Someone who knows the factual situation
This may be the same person as the decision maker or it may be someone else who is on top of all the facts that are relevant to the issues between the parties and who is able to respond to queries that may arise. When considering who are the appropriate individuals to attend the mediation you need to think about who knows all the relevant circumstances. Is there one person who does? If not, you may need to involve more people because a lack of knowledge of the background facts may be an obstacle to settlement on the day.
Your legal adviser
The commercial decision to settle (or not) should be taken against the backdrop of the legal analysis and your legal adviser can help you analyse the risks. In preparing for mediation you should consider whether the circumstances call for one or more legal advisers. Does the client want the contact partner to attend as well as the lawyer with day-to-day conduct of the matter? What is at stake and is it proportional for more than one legal adviser to attend? Does the nature of the legal issues between the parties – liability, causation, quantum and commercial issues – require multiple specialist advisers? Does the nature of the anticipated settlement itself require multiple specialist advisers? We often see this where there are corporate issues and/ or tax issues.
You should also consider whether specialist advocacy would assist. To a large extent this may depend on the approach you are taking to the mediation process. Is it a commercial exercise in which the discussion of legal issues is going to have little or no place? Or is it your intention that the mediation will include some discussion of the legal issues, together with careful consideration of commercial and, where appropriate, personal issues? If you want to debate legal issues, as well as involving solicitors, do you also want to involve counsel? In certain situations counsel can add value to the mediation process, in particular because of their experience as specialist advocates, trained in how to assess the evidence and how to best present a case to a judge and from this perspective, counsel can often bring a sense of objectivity to the process which can help in the decision making process and whether or not to settle. However, mediation is not intended to be primarily an adversarial process and mediation should not become a courtroom situation. It is not appropriate for an attendee to be cross-examined by the other party’s advocate as part of the mediation process. Sometimes one party may consider that they must meet fire with fire and so if one party says they are bringing their advocate then the other party believes there should be equality of arms. However, it should not be the case that counsel’s attendance is necessary at every mediation. Where it is seen as appropriate, provided counsel understands and embraces the mediation process, it can help promote a positive outcome.
Prior to the issue of legal proceedings, the parties should consider whether negotiation or some other form of ADR process might enable them to settle their dispute without commencing proceedings. If proceedings have been commenced, provided that a party’s right of access to the court is not prevented and it is proportionate to achieving the aim of settling the dispute fairly, quickly and at reasonable cost, the court can stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution/ ADR process.
The courts have, so far, been reluctant to lay down fixed principles as to what will be relevant factors to determining whether to order the parties to engage in a non-court-based dispute resolution/ ADR process. But factors such as: 1) the kind of ADR process being considered (mediation is one such process); 2) whether a neutral third party (such as a mediator) is involved; 3) the availability of legal advice during the process (from a solicitor or barrister); and 4) the likelihood of success of the process, will be relevant. If the right people are not able to attend or be involved in a particular process, it may not be effective. So, make sure the process being considered is going to work for you. Mediation is one such process and as we have discussed it can be effective – if the right people attend.
Choosing the correct and relevant attendees for a mediation and preparing the team in advance will significantly enhance not only the prospects of achieving success on the day and a settlement, but also of achieving a good settlement.