Hesketh Mediation Services » About mediation

When should I mediate?

Philip Hesketh — Fri, 26 Jun 2009 08:29:20 +0000

This is one of the questions I am asked most frequently. I have previously referred to Judge Coulson’s comments in Nigel Whitman Ltd v Smith - see paragraph 32 of that judgment. He described the common situation where the claimant wants early resolution asks for a mediator to be involved at a relatively early stage. On the other hand the defendant who may be the paying party wants time to assess the case against them.

My advice is to ask yourself if my opponent made me an offer to settle today would I be in a position to make a business or commercial decision about it. If the answer is yes arrange the mediation as soon as possible, further delay is only going to serve to increase the costs for both sides.

If the answer is no you are not ready. What further information do you need? If you really need it then concentrate your efforts on obtaining it and keep the situation regularly under review.

If you really can’t decide call a mediator. She will give you advice regardless of whether or not you intend to instruct them.

Fear and laziness – why mediators are rejecting the joint session

Philip Hesketh — Mon, 08 Jun 2009 17:40:26 +0000

If like me you were unable to pop across to Singapore for the First Asian Mediation Association Conference you will have to make do with reading Geoff Sharp’s address to the conference In Praise of Joint Sessions. It is an interesting and informed read as you would expect from Geoff. He suggests that where once mediators were divided by the facilitative versus evaluative argument there is now a shift to categorise along the dialogue based versus the separation based lines. In other words, mediators who use joint sessions extensively compared to mediators who use them just for an opening meeting and possibly not at all.

Geoff says the default model for mediating legal disputes in Australasia has the joint meeting as its engine room. That is certainly a different approach and emphasis to what I was taught during my training. However I have detected a shift – not yet to relying more on joint sessions – but at least to extending the opening session beyond the somewhat formulaic exchange of opening statements and housekeeping announcements.

Geoff suggests that Fear is the new F word. At paragraph 7 …

Whether it is the wish of the ‘market’ to have a more settlement conference orientated process or it is at the initiative by mediators — we are seeing less joint sessions because of FEAR.

Fear by lawyers, parties and even mediators, fear of the uncertainty and lack of control that comes with people in dispute being in the same room at the same time – because one thing we can all agree on; you can’t script a joint session, anything might happen. Unlike a courtroom, there are no real rules and once the structure of the opening ‘speeches’ is spent all those involved will have to react in the moment as a participant in (on one level) an uncontrolled environment.

After warning of the danger of potential mediator manipulation when the transparency of joint sessions is removed he concludes that mediators are getting lazy and taking the easier option of shuttle mediation …

I have resisted thus far saying what I really think of a mediation process where the parties never meet as my aim is to present a balanced debate. But I cannot conclude without observing that, in my view, shuttle mediation has arisen, in part, out of a laziness by mediators. Why? It’s just easier to work separately – it’s far less effective in so many ways, but it is easier. Because, you see, the air is just not as thick in caucus and it takes less effort to breathe there.

It is an excellent read and I recommend it to you. Finally what inspires me about great mediators is how much they care for and value the profession. Geoff asks whether or not we should be bothered about any shift away from joint sessions if that is what is happening. Regardless of what you think of his opinion it is instructive that Geoff says “we should care passionately”. That is one of the reasons why Geoff’s blog is always worth looking at (sadly Geoff has now suspended his blogging activities).

As always please feel free to comment and share your views – is the joint session used enough or too much in UK civil mediation?

Recent mediation questions from clients

Philip Hesketh — Fri, 05 Jun 2009 12:06:47 +0000

This website is designed to be a resource for anybody considering using a mediator to assist in dispute resolution. I have a mediation FAQs page where I have put responses to the most common mediation questions. If you have your own question you can post it via that page, send me an email or better still call me on 07595 365578.

I provide mediation training, usually for legal professionals and often get asked other questions at mediation training events. I will add responses to those to the site. Three questions which have come up recently are :-

What does the mediation agreement say?
Do you have to be legally represented at a mediation?
What happens with costs?

The Mediation Agreement

The mediation agreement deals with matters of confidentiality, appointment of the mediator, mediation fees, venue, costs and termination of the mediation amongst other things. I stress that the document I send out prior to a mediation is a draft and parties should contact me in advance of the mediation day if they require any amendments to it. It is critically important that the agreement is read by the legal representatives and the parties in advance of the day.

Legal Representation

It is not absolutely necessary to have a legal representative and I have successfully mediated cases involving unrepresented parties. However I recommend that parties should be represented by a suitably qualified and experienced lawyer, preferably one who has experience of negotiating deals for clients through mediation. Ask your lawyer what experience he/she has in successfully resolving claims for clients through mediation. Ten years ago the answer would probably have been none or very little but that should not be the case now.

My role as a professional mediator excludes me providing any legal advice to either party during a mediation. The aim of any mediation is to reach a mutually acceptable solution to a dispute. Once agreement is reached it is reduced to writing and signed forming a binding agreement. In those circumstances it is preferable to have legal representation. A second best alternative would be to have your lawyer easily contactable during the mediation so that he/she can give advice as required. I have seen this work where a draft settlement agreement has been faxed to a lawyer for approval before signature by the party at the mediation.

It is a question that requires careful consideration but as a general rule I advise you to have your legal representative present throughout the mediation.

What happens with costs?

Normally each party will pay for half of the mediator’s fee and be responsible for their own legal costs of the day. At the conclusion of the dispute the mediation settlement agreement can of course allow for one side to pay all or a contribution towards the other side’s costs. I strongly recommend parties and legal representatives to check any mediation agreement carefully to ensure that fees and legal costs are dealt with in a manner which they expect. If you have not already done so read the article Mediation – a costs trap for the unwary by Tim Wallis of Trust Mediation.

What judges say about mediation.

Philip Hesketh — Tue, 03 Feb 2009 17:05:46 +0000

Judges have over the years often had cause to comment on the desirability of finding ways to resolve claims without going to the often unnecessary expense of a full blown trial. Here are a few words of judicial wisdom…

“It appears to me that this was a case in which, at any rate before the trial, a real effort should have been made by way of alternative dispute resolution to see if the matter could be satisfactorily resolved by an experienced mediator, without the parties having to incur the no doubt heavy legal costs of contesting the matter at trial.”

Lord Justice Brooke, Dunnett v Railtrack PLC [2002]

“Compromise is seen as an object worthy of promotion for compromise is better than contest, both for the litigants concerned, for the court and for the administration of justice as a whole. Litigation is time consuming and it comes at a cost, emotional as well as financial. Those are, therefore, appropriate factors to take into account in deciding whether the battle was worth it. Money is not the sole governing criterion.”

Lord Justice Ward, Carver v BAA PLC [2008]

“As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”

Mr Justice Megarry, John v Rees [1969] 2 All ER, 274

“Once you are in the hands of professional litigants they take charge of you, willy-nilly, and you find that you have embarked on a course that has no turning back and the incidents of which you cannot even understand. Mediation is not like that. You can always turn back and you have explained to you precisely what is going on. You are in control of what is happening to you.”

Lord Phillips, Lord Chief Justice, Speech in India, 29th March 2008

A guide to mediation for lawyers

Philip Hesketh — Sun, 21 Dec 2008 20:22:39 +0000

I have tried to provide lawyers with everything they would need to know about mediation on this site or by linking to relevant external sites. Go to the mediation FAQs page. Please let me know if you can not find what you are looking for by posting a question below or simply emailing me and I will try and add it to the site.

What should I ask my lawyer about mediation?

Philip Hesketh — Sun, 02 Nov 2008 19:01:24 +0000

If you are in England or Wales your lawyer will already have given you some information about mediation in compliance with his/her duty under the Solicitors’ Code of Conduct. The information may have been included in the initial letter you received called the client care letter. Here are some things you might want to ask your lawyer:Is my case suitable for mediation?

Is mediation likely to save me any money?

Is mediation likely to save me any time?

Who pays the costs of the mediation?

What happens if the mediation fails?

Is there anything we can do if the other side say they won’t mediate?

My opponent won’t mediate.

My opponent won’t mediate.

Philip Hesketh — Fri, 03 Oct 2008 03:03:51 +0000

If you want to refer a dispute to mediation but your opponent won’t play ball your options are limited because mediation is a voluntary process. However you could try the following:

Point out the costs consequences of refusing to mediate.

Under the CPR the courts have the power to apply costs penalties against parties who unreasonably refuse to mediate. See the cases of Dunnett v Railtrack PLC and Halsey v Milton Keynes NHS Trust. Ask your opponent to spell out their reasons for refusing to mediate.

Ask the court to make an “Ungley Order”

Lord Justice Dyson said in the Halsey case that he could see no reason why this type of order should not be routinely made. See paragraphs 32 and 33 of the judgment. The order is as follows:

The parties shall by consider whether the case is capable of resolution by ADR. If any party considers that the case is unsuitable for resolution by ADR, that party shall be prepared to justify that decision at the conclusion of the trial, should the judge consider that such means of resolution were appropriate, when he is considering the appropriate costs order to make.

The party considering the case unsuitable for ADR shall, not less than 28 days before the commencement of the trial, file with the court a witness statement without prejudice save as to costs, giving reasons upon which they rely for saying that the case was unsuitable.

For further information and more details about how to get court orders see here and this more detailed article (these posts will open in a new window).

When is the right time to mediate?

Philip Hesketh — Fri, 03 Oct 2008 02:54:05 +0000

The short answer is when you are in a position to make a commercial or business decision to settle your claim.

His Honour Judge Coulson considered this point in the case of Nigel Withman Ltd v Smith He said

It is a common difficulty in cases of this sort, trying to work out when the best time might be to attempt ADR or mediation. Mediation is often suggested by the claiming party at an early stage. But the responding party, who is likely to be the party writing the cheque, will often want proper information relating to the claim in order to be able to assess the commercial risk that the claim represents before embarking on a sensible mediation. A premature mediation simply wastes time and can sometimes lead to a hardening of the positions on both sides which make any subsequent attempt of settlement doomed to fail. Conversely, a delay in any mediation until after full particulars and documents have been exchanged can mean that the costs which have been incurred to get to that point themselves become the principal obstacle to a successful mediation. The trick in many cases is to identify the happy medium: the point when the detail of the claim and the response are known to both sides, but before the costs that have been incurred in reaching that stage are so great that a settlement is no longer possible.

The earlier you mediate the greater the possible savings in costs. Indeed if considerable costs have been incurred this fact alone can be an obstacle to settlement. On the other hand mediating too early when the parties are not in a position to adequately evaluate their case can be counter-productive and an unnecessary addition to costs. Just ask yourself am I ready to make a business decision to settle this claim?

Will Mediation cost too much?

Philip Hesketh — Thu, 02 Oct 2008 19:26:09 +0000

I am a Professional Mediator and obviously want to encourage people to use mediation to help resolve disputes. However I will try to be objective. Please post your comments below if you think I have failed! Firstly you may want to look at my mediation fees. In addition to the Mediator’s fee you may have to pay for rooms if your solicitors do not have suitable rooms available. You should also factor in the cost of your solicitor attending. Some people have a barrister in attendance as well as their solicitor. Given the cost of that you will probably want a good explanation as to why your legal team consider that cost justified.So they are the costs, what are the potential savings?

Assuming no other settlement is reached the case will have to go to trial. Costs of trial include the costs of preparation, solicitors time for attending and barrister’s fee. In addition there will be court trial fee which is currently £1,000 for cases worth more than £15,000 and £500 for case worth less than £15,000.

It can be seen that early mediation can result in considerable costs savings even in cases of relatively low value (fast track claims worth less than £15,000).

If you are the party likely to be paying the other side’s costs (eg because you accept they are entitled to some money but dispute how much) it is in your best interests to resolve the dispute before costs escalate.

A factor which is difficult to put a price on is the investment of time involved in preparing for and attending a trial. Few litigants do not have something they would much rather be doing than preparing for a legal dispute, running a business for example.

How quickly can a mediation be arranged?

Philip Hesketh — Thu, 02 Oct 2008 19:14:18 +0000

The short answer is that it can be done within a few days.

The longer answer is that it depends when everybody will be ready and available. The parties have to exchange availability dates with the chosen mediator to find a date when everybody can attend the meeting. The decision makers on each side will have to attend. In all probability the solicitors will need to be there. Opinions are divided as to whether or not it is necessary to have counsel in attendance.

Some paperwork needs to be prepared before the mediation. The parties will each file a position statement and send a small bundle of strictly relevant documents to the mediator. It is therefore possible to arrange a mediation at relatively short notice. However a word of caution, one of the most likely reasons for a mediation failing is the lack of preparation by one side or the other or both. It is therefore best practice to allow sufficient time to prepare properly for the mediation.