The Jackson Report enthusiastically encourages mediation including for personal injury claims, but is it a life-saver or a banana-skin?
In what many call a statement of the “bleedin’ obvious”, Sir Rupert Jackson has concluded that mediation remains an ‘under-used facility’ which has a ‘vital role to play in reducing the costs of civil disputes’, particularly in personal injury and clinical negligence cases.
However, without a wider understanding of the process and its limitations, promotion of mediation will create huge expectation without equivalent delivery. Done right, parties in a mediation can expect a 75% or more prospect of a low cost settlement from the mediation process. But get it wrong and entrenched positions, duplication of costs and additional delay will ensure that nobody is a winner.
So then, what key considerations should ensure success?
- When to mediate
Mediating without proper gathering and exchange of information is often futile: leaving it too near to trial may make costs an insurmountable hurdle. The balance is not easy but litigators usually have a feel for the time at which they have enough information to provide unconditional advice on the merits of mediation. Issue of proceedings should not be seen as a necessary precursor.
- Choosing the mediator
Where possible consider only those with recognised accreditation. The leading training organisations are CEDR (Centre for Effective Dispute Resolution) and ADR Group, but there are also other, smaller reputable institutions.
Try to select a mediator with an established track record. Approach service providers for their recommendations, but be wary of providers who suggest only their own mediators, as these are not necessarily the best fit for your mediation. Associations such as the Association of Northern Mediators have a good reputation for neutrality.
Both Chambers and Legal 500 directories include mediator recommendations for established mediators, but do tend to exclude younger mediators. Mediator directories like disputesloop.com focus on independent feedback provided for its subscribers.
Finally, talk to the mediator. Even a brief telephone conversation will often give more than a clue as to whether a particular mediator will understand the issues and, equally importantly, gain the trust of the parties.
- Specialist or generalist?
It is important to identify at an early stage whether the case throws up real questions of law which require a legally trained mediator, or whether relatively uncontroversial propositions of law form the backcloth to a dispute of evidence and fact. In many cases some specialist knowledge can save a good deal of time prior to and at the start of a mediation, but that benefit is lost if the specialist allows the process to become bogged down in debate of finer points of law which will only be resolved at trial, if at all.
- Costs of mediation
Costs of mediation are usually very modest in comparison to trial costs, but if the mediation is unsuccessful there is inevitably some additional expense. Often the addition is less than first appears because even an unsuccessful mediation regularly facilitates valuable client conference and preparation time.The focus should still be upon smart mediation – mediating early but with adequate information, preparing properly and giving it 100 per cent.
A good mediator will spend time in advance encouraging parties to seize the opportunity, even when mediation was first countenanced only to appease a pro-active judge or secure some protection against an adverse costs order. Mediation costs are usually borne equally but the parties are free to make another agreement. Funding from insurers may be an option, particularly in cases where the dispute relates solely to quantum.
- Telephone mediations
The Jackson Report encourages telephone mediation, but this should be avoided for all but the simplest disputes. The importance to the mediator of body language and other usually unspoken messages that can only be received in a face-to-face situation cannot be overstated.
- Legal Representatives
Many litigation solicitors are mediation aware, and increasingly trained as mediation advocates or even mediators. There are obvious benefits to having a mediation-trained lawyer on board; they may be able to negotiate a settlement without the assistance of a mediator, and, where mediation is required, those solicitors tend to be much more constructive and successful at mediation. Even if their clients do most of the talking, the all-important binding and comprehensive agreement which follows is much more difficult to achieve without representation.
Of course, mediation is not the only form of alternative dispute resolution. Early and judicial neutral evaluation continues to be piloted, and arbitration should not be dismissed as “litigation with coffee”. However, when drawing the route to successful dispute resolution in most cases mediation will be the sharpest pencil in the box!