Learning from my court experience:

During my years as a judge, I always tried to remember that for the parties the courtroom is an unknown, strange and intimidating environment.

Most litigants will never have been in a courtroom previously. They are out of their comfort zone. The level of formality will be something they have never encountered. They will see the judge and the barristers dressed in rather formal attire and hear them speaking a language that they can barely understand.

These parties sitting at the back of the court listening to others talking about them must inevitably feel excluded from the entire process, and with no control over what is happening in relation to their dispute that has brought them to court in the first place.

Add to this the fear that one or other must end up losing the case and the dire financial consequences that might ensue, and one can well imagine them thinking that there must be a better way of resolving disputes than having some stranger (i.e. the judge) do that for them. Mediation is that better way.

 

Creating the right mediation environment:

  • The surroundings:

Warm, comfortable and welcoming surroundings are ideal. There should not be too many other noisy distractions in the immediate vicinity, or indeed too many other people congregating close by. The parties should feel a sense of privacy and safety conducive to them gaining confidence in the confidential mediation process. If the parties are ill at ease, and therefore reluctant to remain in the location for as long as may be necessary to come to a reasonable settlement, the chances of a successful outcome are seriously diminished.

It is important that refreshments are available. Often at a mediation it can be helpful to maintain any momentum built up during the morning by working though the lunch break, albeit with sandwiches or other snacks available. A break of an hour for lunch can sometimes be unhelpful if progress has been made up to that point. I suggest that there is no hard and fast rule in this regard, and it can be discussed at an appropriate time.

At some point, however, not only the parties, but also the lawyers in the room (and indeed the mediator!) will feel that they could benefit from a break, even if it is just a short walk and fresh air. In fact, if a serious impasse has been reached and parties are struggling to get beyond it, a change of scenery and some fresh air can make all the difference when everyone regroups refreshed after 20-30 minutes.  

 

  • Creating a Calm and Optimism:

Comfortable and welcoming surroundings will facilitate the mediator’s first task of building a relationship of trust and confidence with the parties. Most parties will be experiencing a degree of stress and anticipation as they arrive for their mediation. That level of stress will however be far less than if they were entering a courtroom. As with a courtroom, however, for most parties it will be their first time attending a mediation, and they will not know much about what happens. It is an unfamiliar environment for them.

This moment is an opportunity for the mediator to provide reassurance, and to calmly explain how the mediation will proceed, and to answer any questions the parties may have. The mediator will be able to ease the anxiety in the room, and hopefully inspire confidence in the process that everybody is about to embark upon. Throughout the day there will be moments when a party may become frustrated and impatient at a perceived lack of progress. The mediator must try and maintain pace in the discussions in an atmosphere of positivity and optimism.

 

  • The mediator’s relationship-building:

The mediator has been appointed by the parties themselves because he/she is independent of both parties, neutral, and non-judgmental. The mediator will also have personal integrity and experience. The confidence that these qualities bring at the outset helps the mediator to create a positive and confident working relationship with each party. The parties must not only trust the mediator but must also trust the mediation process. The mediator will have good interpersonal skills which will facilitate a trusting relationship where each party will feel able to speak in a free, honest and open manner with the mediator, knowing that what is imparted to the mediator will remain in the strictest confidence until such time as the party gives consent to any disclosure to the other party.

 

  • How many in the room?

This can depend on the size of the room to some extent. But a good rule of thumb in my view is to keep the numbers of people in the room to the least number actually required. Others can be available by phone or even a Zoom/Teams meeting should their input be needed.

I have sometimes found up to a dozen people in the room. There might be the plaintiff and a spouse, the solicitor acting, and possibly an associate solicitor. Then there can be a senior counsel, junior counsel. Depending on the nature of the case, you might find an accountant or actuary, or other experts in the room. I would encourage as few people as possible to be present because as mediator my focus must be on the individual party and not the surrounding audience.

 As a mediator I need to get to know the parties themselves. I need to b. Parties may ned toe in active listening mode with them. I often need them to talk to me about very private and personal aspects of their lives. This is made more difficult for them by having to do so in front of others who will be strangers to them. The reason parties choose mediation is partly to avoid the stress of open court where many people may be in the courtroom. The mediator should try and avoid that intimidating feature being replicated at the mediation. In most cases, I suggest, the presence of solicitor and one counsel should be sufficient provided that others are accessible during the day as might be required. Restricting numbers in this way is most advantageous for the mediator. It helps to create an atmosphere of privacy and confidentiality which are two important hallmarks of mediation. It helps to ensure that the client feels centre-stage, and not just one person among many.

 

  • The lawyers’ supportive role:

Solicitor and counsel play a vital role in a mediation.

Firstly at the preparation stage before the mediation day itself. The solicitor will be able to explain what mediation is and what the benefits can be. That solicitor/client relationship can help the client to develop a positive approach to the mediation day. The solicitor will have been dealing with the client in the weeks and months leading up to the mediation day. They will hopefully have developed a trusted working relationship.

Secondly, it is very helpful to the mediation process if solicitor and counsel can assist in ensuring that realistic expectations are set. There is little point in the client coming to the mediation with an expectation of a level of success that is simply unachievable. It is helpful if the client comes to mediation with a willingness to make some reasonable concessions and knowing that the other side will hopefully be doing the same. No successful mediation ends with one side getting 100% of what they would like in an ideal world. Most settlements will have involved some ‘give and take’ on both sides, and it is helpful if the legal team for each party has encouraged this in discussion with their client in advance of the mediation.

Most mediators will be hoping that at the mediation the legal team in each room is supportive of the process. It is helpful also if the legal teams leave their normal adversarial instincts outside the room, so that their focus is not so much on the issues that have divided the parties in the past, but rather what the client might want to achieve for the future. Adopting this more neutral and supportive role will greatly assist the search for a landing zone where both sides can feel they can peacefully coexist. In this way the mediator, the client and the lawyers present adopt a positive collaborative role.

 

  • Successful outcomes:

It is worth remembering that success in the context of mediation should be seen only in terms of whether a settlement agreement has been achieved. It is quite often the case, as most mediators can attest, that even though the mediation has concluded without an actual agreement being signed on the day itself, the parties have nevertheless had further thoughts in the days after the mediation, and have been able to finally sign an agreement without further assistance from the mediator. In such cases, it is often the case that what took place at the mediation has helped to narrow the issues dividing the parties, or at least helped to clarify important matters so that the parties have gained a better understanding of each side’s issues and interests, enabling them to have further thoughts and discussions towards finally settling the dispute. This is also success.

But in most cases an agreement will be drafted and signed at the conclusion of the mediation. I must say it is nearly always my experience that the sense of relief, happiness and positivity in the room after an agreement has been signed is palpable. After all, the parties and their lawyers will have put in a great effort over many hours to reach that point. All will have worked diligently to get the agreement over the line. Each party will know at that point that even if they did not achieve everything that they may achieve if a  judge decided in their favour in court, they have avoided (1) avoided the risk that they could lose the case; (2) they have avoided any possibility of further delay caused by an appeal; (3) there has been a considerable cost in terms of financial costs; (4) they have avoided having to give evidence, and be cross-examined; and (5) no reputational damage has been caused by having their dispute heard in open court and the risk of publicity that this entails.

A positive, encouraging, and supportive role played by solicitors and counsel at the mediation is one of the reasons I firmly believe that the choice of mediation over litigation for dispute resolution is a ‘no brainer’.