Mediation – How Do I Approach It?
- By Elizabeth Repper
- •
- 01 Feb, 2017
In this article, our panel mediator Liz Repper looks at practical tips for parties attending mediations.
Businesses and individuals are choosing mediation to try to solve their disputes.
Some, rightly, have in mind the courts’ firm encouragement of mediation as a process and the (now many) cases where a party has been penalised for unreasonably failing to participate in Alternative Dispute Resolution (see for example PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288 ). Some focus on the potential to resolve matters speedily and without ever having to issue proceedings or divert and deplete resources. Some favour a process which allows common-sense non-legal solutions to be agreed and soured relationships rescued. Some have heard that mediation creates a confidential arena where reasons for bringing or defending a claim can be aired.
Being a party at a mediation is however a skill. Here’s some of my tips on how to do it.
1. Remember, you’re not in court
Parties sometimes approach mediation like it is a trial. It is not.
Most mediators act as facilitators and don’t therefore give a decision or view. Instead they listen privately to each party, use their knowledge of the subject area to test parties’ positions and strategise to try to find a path to resolution. Since there is no obligation to prove your case to the mediator, time should be spent on persuading the other party and preparing position papers and points that speak to their decision maker.
Constantly keep an eye on the time. Parties typically agree to have an eight-hour mediation, even for cases that would be listed for far longer trials. Consider, how can you make the best use of the time available? Is there a document you can prepare which short-cuts matters by presenting points in a certain way? Can examples be used?
Remember mediation is a process that adapts to the case at hand. Traditionally, mediations commence with an open meeting. Sometimes however a different process suits better. Ask yourself, what may work best for this specific case?
Never forget that the mediator has no power of compulsion and that parties attend mediation voluntarily. Ensure your team all buy into keeping the mediation day going. If the other party wishes to speak directly to one of your team or show them a document, even if you’re inclined to refuse, think carefully before doing so.
2. Begin at the end
Unless parties walk away, disputes end in settlement or formal proceedings.
Start by considering what the end of formal proceedings looks like for each party. What will happen if the case doesn’t settle today? What points are each party likely to win? How much will it cost each party to adjudicate, arbitrate or reach trial? What is each party’s best and worst day in court? Are there funds available to pay? What will happen to business or personal interests while litigation ensues?
Consider then what the end of this settlement process may look like and write a draft settlement agreement (even if for your party’s eyes only). This will allow time to ponder, research and fill in any information gaps. A draft agreement will also act as a checklist and help avoid any “late in the mediation day” surprise requests.
Don’t stop there however. Try to think like the other party. What might a deal look like for them?
Now consider, what parts of your draft deal could you compromise on? What parts of the other party’s potential deal could you live with?
3. Ask yourself, how did the parties get here?
When a judge asks why monies have not been paid, the answer may be that there’s a dispute about the meaning of the contract. While that may be true, parties can dig deeper at a mediation and ask themselves, how did we get here?
Never forget, every day people could fall into dispute with others, but do not.
Revisit the moment the parties fell out. Ask yourself, is the case just about the construction of a contract or is there something more? Were there crosswords? Does someone feel let down or betrayed? Might there be a feeling of being ignored or not taken seriously?
Often parties cannot move to the idea of settling without facing such non-legal issues head-on.
4. Team mediation
Now you’ve established what each party is likely to want, focus on bringing the right team. Someone with full authority to settle must attend. That person will also need to appreciate the voluntary nature of mediation and be ready and able to address parties’ needs.
Has a business or personal relationship broken down? If so, would someone unconnected help? Might it work better for the people concerned to sit together and talk?
Do you suspect that the other party feels they’ve not been heard? If so, bring someone who will be prepared to meet face to face with someone from the other party, listen, acknowledge and try to address what they’ve heard in an effective way.
5. Fresh air and sandwiches
Finally, mediation days are sometimes long. Always ensure the venue is suitable, refreshments are available and people can, if they wish, step out for some fresh air.
Liz Repper is a member of the M4C Mediator Panel
This article first appeared in Proceedings of the Institution of Civil Engineers - Management, Procurement and Law. Volume 169, Issue 4, August 2016
Zoom is a video conferencing service that enables mediation to take place despite participants being in different places. The Zoom website is a helpful place to start for getting to know how it works.
This guide provides some specific information on how mediations are conducted over Zoom. Should there be any queries or concerns not covered by this guide then please do not hesitate to ask your mediator who will be familiar with what follows, as well as being fully competent in the use of Zoom.
Disputes are not going away in lockdown and litigation preparation is not suspended. There is every reason to carry on mediating and our mediators are finding that using videoconference facilities, such as Zoom, is different but not necessarily any less effective than traditional face to face events.
In a recent mediation where 7 parties in separate locations were in the same Zoom conference, all the connections were good and stable. The body language of the parties could be read by our mediator and the parties could express their emotions.
In fact there were a number of advantages to remote mediation, which we think will lead parties to continue to use it post lockdown:
* Parties were able to join from their own offices. With effective management of the timetable by our mediator, they were able to get on with their other business in their moments of idleness.
* Zoom's breakout room facilities work just the same way for plenary and caucus sessions as do physical rooms.
* Documents can be shared and discussed on screen, which is easier than everyone physically huddling together round a drawing or other seemingly critical piece of paper. In fact such physical huddles may not be possible in future even after lockdown ends!
* Cost saving: the absence of travel time, accommodation and meeting facility costs as well as increased productivity during downtime means that the process is significantly cheaper for the parties.
* The dispute was complex and took steady effort for two weeks after the main day to get the parties to settlement. Because further meetings could easily be arranged by Zoom the momentum was not lost and the parties eventually reached settlement. The continuance by Zoom felt no different from the original mediation. The sense was that the mediation simply carried on until it reached its successful conclusion and made it more difficult to play the 'walk away' card.
* The necessary individual pre-mediation Zoom test calls provide a great opportunity for preliminary exploration of positions and interests. They also allowed our mediator to do some rigorous litigation risk assessment with each party before the mediation formally started.
* Use of WhatsApp messaging groups meant that parties were kept up to speed throughout about 'where' the mediator was and when they would next be required.
A practical guide to using mediation to avoid costly and lengthy construction disputes has won the prestigious Innovation Award at the 2018 South West Built Environment Awards.
The free guide was created as a result of bringing together a number of the UK’s leading law firms specialising in construction disputes, including BPL, Trowers & Hamlins, Michelmores and Ashfords.
Working together with Chris Reeves of BPL and founder of M4CI and pooling their construction sector dispute resolution experience, expertise and knowledge on mediation, these firms have co-authored a definitive guide that sets a new standard for how mediation can work.
“This Mediation Guide presents the combined advice and guidance of some of the UK’s leading law firms. It is a fantastic piece of innovation and could help save construction clients, contractors and their supply chain a significant amount of time and money by avoiding litigation and adjudication when it comes to disputes over projects”, said Christopher Reeves, a RICS-accredited mediator, solicitor and chartered builder, founder of Mediation for Construction (mediation4construction.com), and one of the Guide’s authors.
Mediation is a collaborative method of resolving disputes or differences. A key factor in mediation is that the process is entered into voluntarily and both parties agree to work with an independent and experienced mediator, who helps the parties to work out how to resolve the dispute.
Unlike litigation, adjudication and arbitration where a decision is imposed on the parties by the relevant tribunal, mediation firmly puts the decision-making power to resolve the dispute in the hands of the parties involved.
The Guide’s authors believe that mediations are likely to result in a settlement because of the mediation process. It is widely accepted that the success rate is well over 75%.
“We know that around 38 per cent of disputes are between subcontractors and their main contractors, and around 35 per cent are between employers and their main contractors. Taken together, these two categories account for over 70 per cent of all construction related disputes.
“Published research estimates the cost of construction disputes in the UK to be around twenty-six million pounds. That is a huge amount of money going to waste. We believe that mediation is a pathway that construction clients, contractors and their supply chains should sign up to. We hope this Mediation Guide will start conversations that mean less construction disputes end up in court, adjudication or arbitration”, said Alan Tate, Partner, Michelmores.
The Mediation Guide sets out a clear seven-stage process; from referral and agreement to mediate, through to final agreement of issues or a way forward. It allows all parties to preserve on-going working relationships and provides more flexibility than other pathways for dispute resolution, including taking issues to court. Uniquely the Guide contains a “toolbox” of documents that help to get the process underway and offers a model form of settlement agreement.
The Guide’s authors are Christopher Reeves, plus Chris Hoar - partner at Michelmores, Stephen Homer - partner at Ashfords, and Alan Tate - then partner at Trowers & Hamlin (now partner at Michelmores). The Guide has also received support from Bevan Brittan, Blake Morgan, Clarke Willmott, Foot Anstey, Osborne Clarke, Royds Withy King, Stephens Scown and Veale Wasborough Vizards.
The Guide was created following an initial collaboration between Christopher Reeves with Jackie Gregory-Stevens, who is Head of Commercial – Major Projects at Babcock International Group. Jackie shared her own research, including the published paper, “Mediation in construction disputes in England”. The project was then presented to Construction Excellence South West, who agreed to support the Guide.
Constructing Excellence South West supports and encourages the use of mediation as a process of resolving disputes.
The Guide was designed by Philip Jansseune, Creative Director at Walker/Jansseune.
The Mediation Guide can be downloaded here.
Constructing Excellence South West, in collaboration with Mediation for Construction (M4C), has identified the need to highlight how mediation can and should be used to resolve disputes and Constructing Excellence South West has given its support and encouragement of the use of mediation as a process of resolving disputes.
To promote the greater use of mediation, a CESW Construction Mediation Guide and Protocol has been prepared by a drafting committee: Alan Tate (Trowers and Hamlins LLP), Chris Hoar (Michelmores LLP), Stephen Homer (Ashfords LLP) and our founder Chris Reeves. The Guide will be launched at the summit on 9 June 2017, details o which can be found here
Location: Reading, Berkshire
Date: Wednesday 4th July 2017
Event programme:
| 09:00 | Registration and welcome |
| 09:30 | Speaker – Chris Reeves
|
| Lunch break | |
| 13:45 | Speaker – Elizabeth Repper
|
Join us for a very informative CPD event covering all the ins and outs of mediation in construction disputes:
What is mediation: an introduction to mediation
Why mediate: the factors as to why one would mediate as well as dispelling some common myths
When to mediate: the factors that affect the timing of when to mediate
Making the most of mediation: tips on how to make the most out of the process
How to encourage parties to mediate
Click here for full details
Places are limited so booking is essential at: events@m4c.org.uk
Special guest:
Jackie Gregory-Stevens FRICS MCIArb CEnv
Head of Commercial - Major Projects - Babcock International Group
17:30 to 19:30 on 16 May 2017
2hrs CPD
http://constructionblog.practicallaw.com/mediation-update-the-question-of-when-and-costs-sanction-fo...
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Winner of the Innovation Award - south west built environmental awards 2018
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