Q : What do I mediate most in my job as a professional mediator?

A : Legal costs.

Nearly every single commercial mediation that I do involves the settlement of the parties’ legal costs. If the parties agree that one side will contribute to the other side’s costs then I facilitate the negotiation of what amount will be paid.

For this reason part of my preparation for a mediation is to ask the parties’ solicitors to bring up to date costs schedule to the meeting.

Can a mediation be just about legal costs?

Yes. There are thousands of settled legal disputes sitting in cabinets of solicitors’ and costs lawyers’ offices awaiting resolution of the costs. Often this is done quickly and efficiently with offers and counter offers. However many of these cases take months to resolve costing the firms involved huge amounts of money.

I offer face to face and telephone mediation of costs disputes for cases which have stalled, where the help of a neutral, impartial mediator who is expert in facilitating negotiations can speed up the settlement process.

I am a client, can you mediate my costs dispute with my solicitor?

Yes if your solicitor agrees. They may agree to save the costs of a court assessment of the bill and because a negotiated settlement – free of the constraints of the court’s adversarial system – is more likely to help them preserve your relationship with them as a valued client.

What does is cost?

For low value disputes I recommend telephone mediation which costs as little as £179 plus VAT per party.

For higher value or more complex disputes a 4 hour mediation settlement meeting will cost each party £575 plus VAT.

I want more information what should I do?

You can email me or call me or send me a message through my website, I’ll get back to you as soon as I can. My contact details are here.

Are you a solicitor who wants to try mediation but are not sure where to start? I’d like to help. These are some issues you might have:-

• How to select suitable cases.
• What to tell clients about mediation.
• How to prepare for mediated settlement meetings.
• Who pays for mediation?
• What happens if it fails?

I understand that mediation did not form part of the training for most solicitors and that unfamiliarity with the process can be off putting. If that’s you let me know and I can provide you the information you need, however you want to receive it. I can work with individual solicitors on an informal basis or provide training for a firm, whatever suits you best.

Give me a call on 0845 056 3625.

Who pays for the mediation?

The mediator’s fee is usually split evenly between the claimant and the defendant. When liability is not in dispute the defendant will often agree to pay the whole of the fee.

Can you recover your costs of a mediation?

Yes. The settlement reached at the mediation can (and almost always does) include provision for the payment of costs. This can include the payment of the costs of the mediation and the mediator’s fee. You need to read the mediation agreement to make sure costs of the mediation will be costs in the case if the claim does not settle1.

What happens if the mediation fails?

You carry on with the litigation. The process is without prejudice and confidential so nothing that is said at the mediation can be used in the litigation. Although settlement may not have been reached discrete issues such as contributory negligence or general damages may have been and they can be put in a consent order. The costs of the mediation will be costs in the case if so stated in the mediation agreement or otherwise expressly agreed.

Is a mediated settlement binding?

Most mediation agreements say any settlement is only binding when it is written and signed, at that point the settlement is binding and enforceable. In practice most issued cases end with a Tomlin or Consent order being drafted and signed.

Does a claimant have to speak to the defendants directly?

No, but most mediators will invite them to have their say at any joint meetings and sometimes the defendants will want to hear directly from the claimant. However, the claimant retains control and ultimately decides whether or not to speak directly to the defendants.

Does it work?

Yes. Between 80% and 90% of personal injury mediations conclude with a settlement – including cases where liability was in dispute.

If you have more questions give me a call or send me a message.

The government has proposed to introduce a new step in the civil litigation procedure – mediation information and assessment sessions – which will apply to all non-small claims track cases valued at under £100,000 ( see Solving disputes in the county courts: creating a simpler, quicker and more proportionate system consultation paper from the MoJ). It is proposed they would take place at the allocation stage. They are described as follows in the consultation:

These information sessions would provide an opportunity for the parties themselves, not just their representatives, to be given information about the mediation process and its benefits from a mediator. We want to ensure that parties have given the use of mediation as a form of ADR some serious consideration. Currently, this is often not explored with the parties throughout the court process and the principles behind the pre- action protocols are at times ignored by parties and their legal representatives.

It is not yet clear from the consultation who the mediators will be, what cost will be associated with the sessions and who will pay for them. The alternative dispute resolution impact assessment document which was published with the consultation makes it clear the government is not satisfied that solicitors are fulfilling their professional obligations as set out in Rule 2 of the Solicitors’ Conduct Rules. The document describes a key assumption upon which the proposal is made:

Key assumption is that claimants and defendants are unaware of mediation and once aware more will use mediation instead of court resolution, and success rates for mediation will be sufficiently high to generate overall savings.

It is clear many solicitors are perfectly well aware of their obligations and fulfill them – many solicitors already routinely discuss mediation and other ADR methods with their clients. Other solicitors find it difficult to adequately explain the process simply because it is relatively new and not everyone has had experience of it.

To fill the information gap and in anticipation of this step being added to the procedure I am now offering free mediation information and assessment sessions – follow the link for further details.

Henry Brown

Hybrid mediation is essentially a mixture of what might be called “traditional” mediation and other techniques. I am delighted this week to have renowned UK mediator Henry Brown give his view of how family mediation techniques can be merged effectively to improve the outcomes of commercial mediation. Henry writes:

At the ADR Group’s conference in Oxford in December, I expressed the view that we have become rather entrenched in our models of mediation practice, and especially in maintaining unnecessarily rigid distinctions between the civil-commercial and the family fields.

I have for years been using a hybrid approach that integrates the family and commercial models, and have found it effective. I now run training courses for the ADR Group qualifying civil-commercial mediators to work as family mediators and vice versa, in both cases also covering the hybrid (or “generic”) model.

The standard models are excellent, but we limit ourselves by not being flexible enough. For example, couples in family mediation have a series of periodical short joint meetings, allowing time for reflection and developments between sessions. While inappropriate for most civil-commercial mediations, a couple of pre-arranged sessions might sometimes be suitable, particularly where interim steps are needed (such as exploring options) and/or where longstanding, entrenched issues exist.

Something that I have consistently found useful is the preliminary meeting. In the commercial process, this involves meeting with the parties’ lawyers at an early stage for about 1-1½ hours and addressing a range of matters together. For example, in a substantial dispute about the termination of commercial agents’ contracts, I met both sides’ solicitors and we covered practical matters such as venue, timetable for the exchange of documents, and the creation of an agreed bundle. There were legal as well as factual and commercial issues in dispute, and we discussed the ways in which legal contentions would be exchanged and also what principles of law would be applied. Some accounting issues could be narrowed before the substantive meeting, and we agreed how this could be done. One side proposed bringing leading counsel to the mediation, which generated discussion about the rationale for this and led to a better understanding of their mediation objectives.

Preliminary matters are ordinarily discussed on the phone with each side separately, but where this can be done at a joint preliminary meeting, it can be more effective and provide a better springboard for the substantive day. The cost implications are relatively minimal: this is a procedure that warrants further discussion and development.

Do you think there is any place for preliminary meetings in commercial mediation? Post your comment below and join the debate.

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