Trevor Harrison
Email: trevor@trevor-harrison.com
Tel: +44 (0)1892 861690
Skype: trevorkh

What is Mediation?
Mediation is a flexible process, conducted in private, in which a neutral third party acting as a facilitator assists parties that are in dispute to work towards a negotiated settlement.

Unlike other forms of dispute resolution where a judge, arbitrator or adjudicator imposes a solution on the parties, mediation is a consensual process; the mediator has no power to force parties to do anything they do not want to do and it is ultimately for the parties themselves to decide whether or not to settle and, if they do settle, on what terms.

The courts are increasingly aware of the benefits of alternative dispute resolution, of which mediation is the most popular.  Both judges and court officials are therefore likely actively to encourage parties to mediate at the earliest opportunity.  At present mediation is still a voluntary process but a party that unreasonably refuses to mediate is likely to be penalised in costs; refusal should therefore be regarded as a high risk strategy.

Why Mediate?
Mediation has a number of advantages over other methods of dispute resolution, most important of which is that it is generally successful. Available data are inevitably imprecise given the confidential nature of the process but there is general recognition that more than 70% of mediations result in settlement on the day, with a further significant percentage settling shortly thereafter.

Even where mediation does not lead directly to a settlement, it can, and often does, clarify areas where there is agreement, or at least an absence of contention, between the parties.  By careful reality testing, a mediator can help parties reassess their cases and recognise not only their strengths but also their weaknesses.  So even where mediation is not directly successful, both of these attributes can significantly reduce the scope of the dispute, thereby reducing the cost of subsequent preparation for trial and even the cost of the trial itself.

Mediation is quick and cost-effective. It rarely takes more than a few weeks to organise a mediation, a couple of weeks is typical; if necessary, a mediation can be convened in a matter of hours.  There is rarely the need for a two party mediation to take more than one day, although that day might last until long after the cleaners have gone home for the night.  The cost of the mediation itself and preparing for it are usually modest when compared with the costs of seeing the matter through to the conclusion of a trial.

Although most mediations follow a standard pattern, they can be tailored to the parties' individual needs and, where appropriate, the mediator can even adapt the process during the mediation to respond to these needs.  Unlike other, more formal methods of dispute resolution, the parties are not bound by a set process and strict deadlines although time is limited and one of the mediator’s key functions is to maintain momentum.

The flexibility of mediation also means that there are no restrictions on what a settlement can encompass; matters that are outside of pleaded cases can be, and often are, included within a settlement agreement.  Mediation can often therefore be a way for the slate to be wiped clean and for the parties to maintain or resume a business relationship that might otherwise have been irretrievably lost in the bitter fallout of a trial and judgment.

Are There Any Disadvantages?
Although mediation is a tremendously useful and productive dispute resolution process it is not the solution to every problem; some cases are genuinely not suited to mediation although it is becoming increasingly difficult to make any useful generalised comments in this regard.  The prevailing attitude amongst the judiciary is probably best expressed as a strong recommendation to attempt mediation in all but the most extreme of circumstances.

Mediation can notionally be used as a delaying tactic and, arguably, as a way for a well-funded litigant to increase costs pressure on its opponent; neither of these possibilities should pose a significant problem for a party that is well organised and well advised.

Mediation can also be used as a mechanism for testing the strength of the opposition’s case in terms both of argument and evidence.  It is a matter of opinion whether this is a disadvantage although it is fair to note that as solicitors and barristers become increasingly familiar with mediation, there is a growing trend of their trying to manipulate the process and even manipulate the mediator; an experienced mediator will be alert to this possibility and take steps to keep it under control.

Can a Party Refuse to Mediate?
Refusing to mediate (or gross and obvious failure properly to engage in the process) before or in the course of litigation may result in the refusing party being penalised in costs at the end of the trial. The courts have provided, and are continuing to provide, guidance on when it might be reasonable to refuse to mediate. The criteria include:

• the nature of the dispute;
• the merits of the claim;
• whether other settlement methods have been attempted;
• whether the costs of mediation would be disproportionately high;
• the potential for delay that mediation might cause; and 
• whether mediation has a reasonable prospect of success.

These evolving criteria are not exhaustive and should be regarded only as guidance. It is unlikely that any single factor on its own will lead to a finding of reasonableness and there is no way of knowing if a party's reasons for rejecting mediation will be considered reasonable until the very end of the case when all of the legal costs have been incurred.  A successful litigant who has refused to mediate is therefore at serious risk of winning on the merits but of not only being denied its own costs but of also being obliged to pay some or all of the loser’s costs as well – a high risk strategy indeed!

When is the Best Time to Mediate?
A mediation can be arranged at any time during a dispute.  Early mediation has the advantage that it can save much of the costs that would otherwise be incurred in the pursuit and defence of a claim.  On the other hand, the full nature and extent of the issues may not have been properly identified and valued, the best evidence may not yet have emerged, and the parties’ positions may not yet be clearly defined.  On the other hand, there is great value in the maxim “least said, soonest mended”.  In any event, there is rarely much to lose from an unsuccessful early mediation apart from costs.  An unsuccessful early mediation is no bar to mediating again at a later stage.

There are some advantages to mediating later, particularly after disclosure; the pleadings will, hopefully, have narrowed the issues whilst disclosure and witness statements will have given an increased understanding of both parties’ strengths and weaknesses.  It is likely that the extent of damages claimed or other remedies sought will also be more clearly defined.

Mediation can, and usually does, run in parallel with litigation although the litigation clock can be stopped to allow a mediation to take place if time is short. If the mediation is successful the parties can discontinue any litigation or, if it fails, can resume the litigation from where they left off.

Conclusion 
Mediation is a powerful, adaptable and responsive dispute resolution process with a very high prospect of successfully settling differences at modest cost.  It is the quiet voice of needs based pragmatism rather than the bellicose rhetoric of aggressively asserted rights and obligations.  The key to success in mediation usually comes when the parties, often for the first time in the dispute, recognise and then try to fulfil their realistic needs rather than continuing, relentlessly, to satisfy exaggerated aspirations.  Ultimately, mediation is a process that gives people not so much what they want but rather, what they are prepared to live with, and often, by way of a bonus, it gives them back their lives.

Trevor Harrison, September 2007