Nigel Broadbent, director and head of the Dispute Management Department at Lupton Fawcett in Leeds, discusses his approach to mediation, including preparation, handling resistant parties, the trends he’s seen over the last 10 years - and what he wished he known about the mediation process when he began his career …
Without question, in today’s climate, you have to consider ADR at the outset in every matter. That said, experience suggests that some lawyers don’t really buy into the ADR mentality, which is surprising when you consider the various judicial advice against and costs sanctions imposed on those unreasonably refusing to engage in mediation.
I think the role of the legal adviser is not simply to advise on the process, but to ascertain what the client’s commercial objectives are, and the best way to achieve them. Most of the time (though not always) the client’s interests are best served by some sort of resolution outside the courtroom. Obstructive solicitors – and let’s not forget barristers – who appear more interested in pushing matters to litigation and trial, perhaps for the purpose of generating fees, will only be working against their clients’ interests.
It’s not always appropriate to mediate at an early stage. Sometimes circumstances require a different approach. But in order to consider all potential outcomes of a case, ADR must always form part of your discussions with your client from the outset.
Because every case is different, the preparations are bespoke each time. But whatever the case, it shouldn’t be a complicated process. There is no need, in my opinion, to impose a standard form of instructions. Customarily, they tend to follow a similar pattern anyway due to the nature of the exercise. You are appointing someone independent who needs to know enough about the case that they can understand the issues and usefully contribute to the debate on mediation day, but they do not need to be deluged with the minutiae of every aspect of the case.
You can’t force your opponent to mediate, but you should forcibly impress upon them the potential consequences to their client of failing to engage in ADR. Most people will acknowledge that reality
In most cases it is possible – and desirable – to reduce the papers to one lever arch file, consisting of the parties’ position papers, the core pleadings and orders, witness statements if there are any, and (usually, this is going to form a part of any settlement discussion) details of your client’s costs. If you want the mediator to see documents which are to be kept confidential, then of course they should be sent to the mediator separately, and not to the other side.
It is good practice for the mediator to have a preliminary phone conversation with each of the parties’ solicitors prior to mediation day, if possible. That can help to set the tone, and to identify any particular sensitivities or obstacles likely to feature in the discussion. It can give the mediation a bit of a head start.
Yes, a number of them in fact. My experience has been that some mediators are better than others, and I tend to discount immediately mediators who have not impressed me or who I have heard unflattering things about from people whose judgment I trust. Like most things, you tend to stick with what you know is reliable.
Different clients and cases will require different approaches. Sometimes you need someone very hard-headed and assertive to impress upon the clients certain things that they might not want to hear. In other cases, you might need someone with a good ‘bedside manner’, or, if the dispute involves very technical or scientific detail, the mediator will have to have to have a good technical grasp. Those are all good things and you try to match mediators to cases you think they will be a good fit for.
Yes. Generally clients want to know different potential outcomes when considering how to handle a dispute. The costs are, obviously, fundamental to that process. Also, you have to provide for ADR in your costs budgeting in cases that result in litigation.
You can’t force your opponent to mediate, but you can and should forcibly impress upon them the potential consequences to their client of failing to engage in ADR. Most people, clients and solicitors alike, will acknowledge that reality, and at least pay lip service to the process, if only to reduce the risk of sanctions later on.
Interestingly, in cases where a party’s engagement with an ADR process is reluctant, or truculent, or even just box-ticking to avoid costs sanctions, sometimes they can surprise you and turn into proper settlement discussions. Mediation is perhaps the best forum for producing this kind of outcome, ie unexpected settlement, because the process is designed to get people talking. And when people talk, they formulate ideas and start to visualise a time when they no longer have the dispute hanging over them. That can be very powerful. It is also very satisfying for the solicitor to see an apparently intractable dispute come to a resolution that all parties, ultimately, volunteer for.
Definitely. The value of mediation is that it can focus people’s minds. If it is done properly, it makes them consider the range of outcomes to their dispute. It gives them a means to express their views and to feel they have been heard, which is often one of the drivers to people pursuing matters to a hearing in front of a judge. It also enables settlements to be structured in ways that are not available to a judge, and that flexibility can remove a lot of obstacles to settlement.
Litigation has become virtually impossible for anyone who is not very rich or very poor
If you litigate, chances are that the dispute will ultimately settle anyway – most do – but along the way the costs will have increased significantly, positions will have become polarised, and usually a huge amount of the client’s time will have been tied up in the litigation process rather than running their business or getting on with life generally.
I can’t think of any situations where mediation at some point in the dispute process would not benefit the parties involved. At the end of the day, all you are doing is talking on a without prejudice basis. You lose nothing by talking.
I’m certain that increased court fees inhibit some people from issuing proceedings. If that results in cases settling, through mediation or other ADR processes, then that is a good thing. There remains a more fundamental point about whether having a regime of eye-wateringly high court fees constitutes an attack on our civil liberties, our right to have access to justice. I think it does.
Like mediation, other forms of ADR have also increased in response to the repeated hikes in court fees. Arbitration in particular seems to be more common than it was.
I remember in the 1990s there was a lot of litigation issued that probably didn’t need to be, which led to the Woolf Reforms and everything that followed. Mediation got a real boost from that. I have a feeling that it has gone too far the other way now, where litigation has become virtually impossible for anyone who is not very rich or very poor.
Mediation (ADR generally, to be more accurate) has always been an integral part of resolving disputes. One gets the feeling that politicians of all parties want to strip down the legal process completely so that mediation (or other ADR processes – anything as long as it does not involve having to provide and pay for a properly-resourced court service) becomes the default mechanism. However laudable it may be as a policy to encourage settlement between disputants, I do not believe that it should be used as a foil for a policy of basically winding down our judicial system and jurisprudence.
Some solicitors use counsel as a sort of crutch – don’t rely on them too heavily
I think it’s likely that mediators will become regulated, because as the legal market becomes more and more fragmented, the number of mediators will increase. So will the quality of what is available. It is not, or should not be, a big leap for an experienced litigation lawyer to seek accreditation as mediators. When your working life consists of assisting people to resolve problems, it’s not that difficult a transition from advising a client in a partisan way to assisting two conflicting parties to resolve their differences. But of course, it depends on the level and type of experience. Not everyone has the right experience or the right skill set.
Keep an eye on the clock and don’t be afraid to point out to the mediator if the other side are hogging all the available time in their private discussions. There might be a very good reason for it; but there might not. Time can disappear very quickly, so use it productively.
Don’t rely on counsel too heavily. Some solicitors use counsel as a sort of crutch. It is often unnecessary to have counsel present, as it adds to the cost and it can heighten the contentiousness of the process. Sometimes you find that counsel will try to turn a mediation into a kind of summary judgment-style argument. This is a lesson I learned early on. Use counsel when you need to, but be aware they can be a hindrance rather than a help.
On the other hand, and to be scrupulously fair, some barristers make excellent mediators, provided they remember that they are assisting a negotiation, not sitting in judgment.