Article published by LexisNexis on 20 May 2019.
Dispute Resolution analysis: The recent London International Disputes Week highlighted the crucial role that mediation now plays in dispute resolution. Adrian Lifely, CEDR accredited mediator, partner at Osborne Clarke and specialist in international arbitration and litigation, discusses the central role London plays in mediation, which provides an alternative to going through the courts.
What is the current status of mediation in London?
In London, it is completely normal for disputes to be mediated. Importantly, this means that parties can propose mediation without any stigma. For example, it is no longer seen as a sign of weakness. This is having an exponential growth effect on mediation. The situation is very positive, and parties now have an option to try to settle their dispute effectively at the earliest possible stage. This of course saves considerable legal fees, as well as inconvenience and disruption for their business. Even though our clients have embraced mediation, this does not mean they are pushovers and desperate to settle. Rather, it means that they use mediation to obtain good settlement results.
Why mediate in London and what are the advantages of doing so?
London, as a location, of course has advantages, as everyone knows, relating to language, convenient travel, etc. However, with regards to mediation, the key advantage of London is that there is a large pool of expert mediators available here and ready to help parties to settle their disputes. Whatever type of mediator you want, you can find that person in London.
For example, I am an experienced disputes partner as well as a mediator, and many parties will select me rather than full-time mediators on the basis that I am in touch with clients’ needs and the commercial exigencies of a dispute. There is also the point that English law fully supports mediation and there is therefore the legal comfort that matters discussed at mediation will remain privileged and cannot be used in litigation.
What is the forecast for the future, with reference to the recent November 2018 Alternative Dispute Resolution (ADR) report and to what extent is further encouragement of mediation as a form of ADR in the UK needed or encouraged?
There does not seem to be a great appetite for making mediation compulsory in any way. It looks like the approach will continue to be that the courts will encourage parties to mediate, and possibly the pressure to mediate will increase slightly as a result of measures introduced pursuant to the working party’s report. I would therefore expect to see the occurrence of mediation increasing yet further year on year in the UK.
It will be interesting to see what happens in other jurisdictions. For example, I was recently visiting Russia, and mediation is virtually unknown in relation to commercial disputes. There is a good degree of scepticism about mediation in Russia. However, this is not dissimilar to the situation that prevailed in the UK when I started out in my career, and look what has happened since—mediation has become part of the furniture of dispute resolution and has been entirely normalised among disputants. I am therefore optimistic that mediation will spread across many jurisdictions, including ‘hard ones’ like Russia.
I would therefore strongly advise young lawyers to learn about mediation and to get involved, as it will be important in their careers. I would also encourage clients to take an interest in mediation, and to be proactive with their lawyers in suggesting that they should go to mediation. The wonderful thing about mediation for clients is that they can lead it. They can be an important player in the mediation process, whereas they often feel left on the outside when it comes to court litigation, with only lawyers doing the talking.
Are there any practical and useful tips to keep in mind?
Prepare well for a mediation. Take the trouble to try to understand your opponent’s position and interests. If you can do that, you have a better chance of addressing them and this will help you find a settlement. Of course, you also need to analyse carefully your own objectives and decide what terms you are prepared to settle on.
At the mediation itself, try to separate out the issues from the people. Do not let things get personal and try to be reasonable while of course looking after your own interests. For the lawyers, leave your ego in your office, and do not try to outdo the opposing lawyer and show off to your client. Let your client do as much of the talking as possible. That is far more effective than a lawyer’s rhetoric.