Written and recorded by Peter Causton, Solicitor and Mediator, ProMediate
Hello. My name is piece of cost and a mediator on solicitor. Today. I'm going to be talking to you about mediation. The first point that I'm going to the cat is constructing a mediator and when to mediate, so there's no set time. When a mediation can take place, it can take place from before proceeding. Start right up until trial or even in the court of appeal. But generally speaking, there are the pre action protocols, which often provides for a D R alternative dispute resolution to take place. Alternatively, they may be a dispute resolution clause in a contract which provides for a method of selecting mediator or arbitrator prior to proceeding starting. Alternatively, if proceedings have started, the court may order mediation to take place for these order a stay for mediation. Onda Um mediation still remains poor country in the court system, but nonetheless, the courts do encourage it. So you may well find that you have an order made four mediation or incentive to speed reservation as a case management conference or upon allocation. Investigators have generally being quite skeptical about mediation in the past on always considered that offering to mediate was a sign of weakness, however, people have become more familiar with it and understand that it's in the client's interests to trying Teoh get out of proceedings soon as possible. We also have, since that time the alternative dispute resolution uh, directive on the A d R regulations 2015 in consumer cases that encourages a trade or business to provide details of a nadie our provider whenever a complaint cannot be resolved so that has also encouraged mediation or a D are to take place is at the earliest possible point. The courts do now support the process on they can impose penalties if there's a refusal to mediate, so that's always worth bearing in mind. We would sigh that the best time Teoh undertake mediation is as early as possible when you know enough to end that the dispute. Andi, it's possible you may never get to 100% state of knowledge regarding the dis beat Andi. Therefore, one has to balance the costs of going Teoh trial or getting further down the process against the benefits of perhaps becoming more informed. It's fair to say that in many cases clients are perfectly happy to resolve things at an early stage is only the lawyers who benefit in the long term. As a case goes on, obviously, costs increase. Andi. It's now clear to parties how much cases are likely to cost with cost budgeting. In multi track trials, for example, cases can take a long time to get to trial. During that period, they hang over the parties. So the most recent statistics show that the average time taken for small claims to get to trial was 33 weeks of a film. Still multi track claims. It's 57 weeks. Such you gone up three and two weeks on the same period in 2017. So any the but lawyers really benefit from going all the way down the track to trial. How therefore, Teoh prepare for a mediation? Well, there's any secret to it, really. There are lots of mediators out there now that some so many of them are training Andi. I would encourage everyone to be brave in their choice on not necessarily just to use the same old names, but in particular think about value for money on bond. The price, um, of the mediator as quite often the new entrance to the mediation profession that will charge less than the old hands. He received the regular instructions, and they could be Justus capable. It is sometimes worth well getting someone who knows the industry well. They're having said, That's it's easy to get up to speed In a lot of cases, what really matters is the mediators ability to understand the psychology of resolving the dispute. Andi. It's important that the mediator has enough time to get to grips with the case so worthwhile checking how busy the mediator is on whether they have some free time prior to the mediation, not only to read the papers, but to contact the parties and to discuss in advance what is likely to happen on what the party stances are. It's important also to decide how long you want the mediation to last and by what method you want to conduct it. Because there's a lot of choice these days, so high value disputes, possibly a full day, is required for a lower value disputes. It may only be justifiable to have half a day's mediation. It's no longer absolutely necessary to hold it in person. On most mediators, air able to conduct mediation by telephone, uh, or online. So it's well worth speaking to the mediator in advance and finding out what they're approach is likely to bay. And then we'll say, As I say, cost is very important. I would also check that the mediator is registered with the Civil Mediation Council because that doesn't mean that they will be properly insured on abide by the code of conduct for mediators. On there is a list off. Civil Mediation Council registered mediators on the Ministry of Justice Civil Investigation Civil Mediation Directory. She's kept up to date by the Civil Mediation Council in terms of preparing for the mediation. Most mediators to want to see the key documents in advance not a massive bundle, but maybe your ring binders worth of documents, The key ones to read. Andi. A position statement or summary of the case is a useful a document to have as well se important. Teoh Try to agree which documents were going to supply to the mediator on t provide them when in advance is not just necessary simply to provide the pleadings but the key documents. Some solicitors write their own document, but their own case summary or position statements. Others leave it to their to the representative. It's important to show a willingness to compromise in that document. Also in advance. Very important to get to work out what your costs are to date on what they like it to be going forward to trial for a business or, in fact, anyone. It's important. Teoh. Understand what the consequences are likely to be. If you're unable to settle the case on what the worst case scenarios like it to be, any mediator with the salt is going to be asking those questions. In the mediation. US always went preparing for a mediation spending time. Preparing is the key to success on, and one hour spent before the mediation preparing is probably worth about three in the mediation itself. It's well worth spending time with the client, making sure that one understands where they're coming from. What they're hoping to achieve in the mediation say that there are no mistakes made on the day itself for no misunderstandings. And if one is singing from the same hymn sheet, it's also important to understand the limits off the clients authority ons where they are going. Teoh needs additional authority from anyone A Z. It could be embarrassing on the day if one gets to a stage of being close to settlement but not having anyone present who has authority. Teoh agree a settlement. So work out who's going to be attending the mediation and whether anyone likely insurer, for example, needs to be presence on the other end of the line. Also worth focusing upon the other issues that might arise. Um, that don't necessarily jump out at you from the pleadings from the legal case. Um, for example, is there any particular reason why the business wants to continue trading with the other party? Does it want to resurrect a contract or try and keep the business in future? Well, the litigation make the party look bad, um, or effect, takeover or merger or something like that. All these things need to be explored. The seeming that one then has full instructions and authority to negotiate on to attend. It's important Teoh ascertain who will be attending on the part off the client. Will they be attending? Will their representative be attending or barrister, for example? Sometimes they can be helpful, but sometimes they can be a hindrance. So bear that in mind a seeming that's, um, all goes according to plan. It's the necessary Teoh agree the mediation agreement to make sure that you make it clear in that agreement with the mediator on the other party, whether the costs of the mediation we're going to be in the case or whether they will be born by the parties. In any event, we'll say you'll be required to sign a confidentiality agreement. Onda At the beginning of the mediation, the mediator normally explains the parties that everything that takes place in the mediation is without prejudice and confidential. It's important that the client and everyone present understands that the question is really whether the mediator will hold on opening session with all the parties present. In fact, in America, that's how the mediation is conducted all the way through. But in this country, Germany speaking, there's possibly one opening meeting where everyone is present. And then after that, the mediator will shuttle between the parties and try Teoh, help them to come to an agreement. So it's useful. Teoh, ascertain Priority. The mediation starting whether or not there will be on a printing meeting. Sometimes this can be very awkward on counterproductive. On the other hand, it could be an opportunity for the parties to have their say to each other on can be quite cathartic. I'm increasingly coming across the situation where the parties don't want to have on opening session, but instead just want to me straight onto negotiations. I suppose that shows that the process has become a little more mature, perhaps certainly with commercial parties they may have no need to see each other on. They may already understand each other's case cases or think they do. I'm having said that. It's often surprising what comes out in April meeting and how it affects things. Onda. Do you prefer to have one, if possible? Having said that, sometimes parties that really not so in favor of meeting each other, for example, Ah, mother and son or a, um, for my partner in a class A dispute, you may not want Teoh actually meet each other. Andi, I've certainly had situations where they find it difficult even to be in the same building that lay in the same room. So nonetheless, a joint meeting come be an opportunity to hear what, um, the other side has to say, Andi, um, it's a safe space for them to explain how they feel about the situation. Um, it's very difficult to judge, but it's really just a matter of judgment. It's whether or not to have the neighboring session. It could be an opportunity to assess the other party. And how they likely Teoh come across in court. If it's going to go that far is an opportunity to influence how they're thinking and possibly a chance to change the way they think se the party seldom a bit it. But over time they may find that they're beginning to understand how the other party is thinking, and it may chip away at their the barriers to two settlements. Whether or not there is a new opening meeting with everyone present caucuses meeting. There will then be the individual meetings that take place between the mediator and the parties, and sometimes it does help to get the solicitors together on their own or the experts on their own to discuss matters and see if that can break a logjam as to whether or not it's useful to have counsel or experts present at the mediation if their allies to the process. It can be useful, however, if they are our adversarial than it can make it more difficult, and it probably not benefit the process. They can be useful to give advice and, UM, and an objective viewpoint. Uh, but, um, it's a it really depends on each case. What's important is that people a doctor collaborative approach to working on and obviously used the mediator. Teoh put forward offers to each party and hopefully to come to a resolution. It's important that the party themselves take steps into stage in the decision making process. On preferably, um, gets an opportunity to tell their story and have their say. So, really, that's the advantage of mediation. The parties have the opportunity to have their say and to take control of the process. It's worth bearing in mind prior to the mediation, whether there are any other possibilities for settlement, not just the legal process possibilities, remedies that will be available in court, for example, the policy one of the parties may need further time to pay um, things like that. They may want the contract to continue, then on to negotiate a new contract for a new lease. All those sort of things can be sorted out in a mediation. One example that may illustrate this is that off a disputes between a caterer, Uh, you had a hot dog store as a football ground. I was in dispute, And, um, on the face of it, it appeared to be a simple financial matter. But then when the mediator went to speak to the caterer in in the private meeting, uh, they discovered that one of the things is particularly bugging the caterer. That was that they could, uh, when they weren't serving hot dogs halftime or before the matter after match, they could actually see the game. And that was very important to them. Therefore, the mediator was able to go to the football club and explain to them with the caterers permission. That's, um, this was an A C. Because the caterer was a very keen football fat on. As a result, this turned out to be an important aspect of the mediation because the football cover able to offer him a five year season ticket, which really was the deal clincher in this particular case, say that's just one example where something outside the ordinary can be can be used to try to break the logjam on bring parties too a settlement. Finally, I would then turn to the settlement agreement itself. Ah, very much advice party. Come to the mediation with a draft, not wish you to tempt fate, but it is useful to have one. A template available just in case at the case does settle. After all, the majority of cases that go to mediation do settle. One thing that is worth bearing in mind is whether any special terms will be required, such as payment by instalments. It's quite often the case that parties will spend hours getting to a stage of settlement, discussing a figure that might be acceptable and then right at the last minute. They realized that they can't afford to make the payment unless it's by instalments. And that can really be a difficult situation when the parties have already spent a long time negotiating so well worth during the negotiations. Just highlighting that whether there'll be any need full time to pay or anything like that, that it's likely Teoh crop up at a later date time Also important, Teoh work out whether you're going to be wanting confidentiality term for the settlement. Um, because again, that's something people quite often asked for at the end. If negotiations much better get that sorted out the Iran in the course of the mediation Sigh. In my experience, it can take up to an hour from the agreement, actually having been reached to drawing up the and agreeing the final settlement agreement. Sometimes it isn't possible to actually draw up a final agreements on the day, which case it is perfectly acceptable to produce heads of terms, which is a non binding without prejudice. Agreement to agree. Generally speaking, people, once they've gone to the effort of reaching a settlement or not gain Teoh turn around at a later date on refused to implement it. If the case is going through the courts, then it may be necessary to fall a Tomlin order or consent order with the court. Andi. It's worth while drawing that's up in the mediation as well. All sensitively. The settlement agreement can simply say that atomic in order, will be drawn up in those terms. So it's important also to make sure that the settlement is in front of final settlement of everything in relation to the dispute that has been mediated on Teoh. Put that in the definition section off the of the agreement, Andi um, parties were quite often trying Teoh wide in the escape of the settlement to, for example, say that it settles, oh disputes, whether or not known at the stage. Um, but then most parties will not agree to such a clause, which is too wide ranging on will simply want to limit the settlement to the issues that are known, uh, or the dispute that is set out in the settlement agreement. Another, I see that quite often arises v a t on whether the 80 will be included in the settlement on whether it can then be claimed back. That isn't something that is within escape of this talk. However, it can often take a long time in the individual meetings for the mediator to question the parties about the strength or weakness of their case on to elicit an offer. Andi, Sometimes it's better to try to cut through the legal arguments and just focus upon the figures A Z that is what generally happens at the end off the process a mediation. Germany fills up the time that is allotted to it. I think it's important to be honest to the mediator. Although some parties Teoh seemed Teoh play such a negotiation games with the media to conveying I'm realistic offers to the other party or pretending that they have reached the end of the road that they're not willing. Teoh, uh, move any further on their positions. Sometimes it's genuine, and sometimes it isn't. But there's always a risk that, if I am on offer, is put forward as a final offer that the other party may take umbrage on the mediation may come to an end. One of the things that can happen to me in a mediation is that one of the parties may seek Teoh, try to contact somebody outside the mediation for their views, or Teoh, see what someone else thinks about the process. And obviously they're not allowed to do that under the terms of the mediation agreement. Um, Onda, um, it's a breach confidentiality to mention to anyone during the mediation water is going on. That's having said being said it is often the case and is acceptable for the party's contacting. Shearer's in an insurance case for instructions where that is being agreed in advance. One top tip for settlement agreements is that it's much easier if you work from one laptop, for example, rather than tea, Um, and avoid having different versions off the agreement. Andi, if there are different versions and it's a good idea to put the times of their creation so they can easily be referred back to in terms of printing Ah, this is one of the things that really should be sorted out. So the beginning of the day, where the mediator should really check with the reception where the mediation is taking place, whether it was possible to print anything if it isn't than Elektronik signatures may be acceptable these days. Um, alternatively, it's possible for the mediation and obviously to be hand written, which could take a lot longer to Dio important also, to ensure that the person signing the mediation agreement has authority to do so. Thank you very much
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