As Practiced By The DEVON & SOMERSET LAW SOCIETY

A brief history of ADR in the UK accompanies these notes and can be read as a preliminary exercise.

Mediation as practiced in the UK is based very much on the American model which provides for a structured approach to mediation requiring very extensive hours of training, considerable paperwork and litigation type procedures which are often not necessary in small cases. It has to be stressed however that the Exeter technique is not designed for high value multi party mediations, which are far better dealt with by the American models, but is particularly suitable for smaller issues.


Definition of Mediation

Mediation is nothing more or less than, that managed negotiation and a Mediator is a manager of negotiation between conflicting parties.


Process and Contents

The Mediator’s role is to manage the process. He or she is not concerned with the contents of the dispute between the parties.
The Andrew Fraley and Exeter Model

The Devon & Exeter Law Society’s training is undertaken by Mr. Andrew Fraley a Mediator who does more mediations in the UK in a week than most UK Mediators do in a year. His view after many many years experience is that mediations which cannot be satisfactorily resolved in three hours probably will not settle and will have to go through the Courts. The Devon & Exeter Law Society, at the request of the judiciary in Exeter, have refined the Andrew Fraley model so that the Mediator is required to mediate cases presented to the mediator at short notice and in a very much reduced time frame of thirty minutes although it is found on average that mediations, even in small matters, normally take forty five minutes and complicated or high value cases normally take (and should be allowed) 3 hours.

There are differences in technique depending upon the length of the mediation. The parties will of course have been advised on the length of time which the Mediator can spend with them before the mediation starts.
The Principles of Mediation

A Mediaton is always confidential and is preferably held on neutral premises it is in the nature of assisted negotiation between two or more parties who may or may not be represented by lawyers or advisers. The parties are at liberty to leave at any time. In the Exeter model it will be time limited, but can be extended if all parties agree. Before the mediation starts the mediator will confirm to the parties that he/she is:-

1. Impartial.
2. Non judgemental.
3. Unable to give any legal advice as to the respective merits of either party’s case.
4. In the nature of a guest at the party’s dispute.
5. Unable to express any opinion as to the respective merits of either party’s case or the possible outcome of the case if the matter proceeds to trial.
6. Not compellable as a witness by either party.

The process being entirely confidential neither party is entitled to reply upon anything said by the other party or indeed by the Mediator if the matter goes to trial.

The Process

(a) A Court Based Process

The Mediator will have been provided by the Court with the main documents from the Court file setting out the pleadings, that of course will give the Mediator a good idea as to the extent of the argument.

(b) Non Court Process

Each party will be asked to provide a position statement or the pleadings if a case has been commenced so that the Mediator can understand the respective party’s points of view. He or she is not required to access the respective strength of either party’s position. In brief whether or not the mediation is Court based or non Court based the Mediator will go through the following procedures:-

1. Meeting and greeting each party and trying to set each party at their ease.
2. Allowing each party either in the presence of each other or separately (at the Mediator’s discretion) to state their case without interruption by the other party. The Mediator may then at his or her discretion sum up each party’s case but without commenting upon it but to make sure that the Mediator fully grasps the issues between the parties.
3. Once the mediator is satisfied as to the nature and details of the dispute he/she will decide whether the mediation should continue with all parties in the same room or whether the parties should go into separate rooms, normally when the parties have representatives with them they will go into separate rooms and the mediator visit them in turn trying to give them equal time.
   
   The Mediator will seek to amplify each party’s case by means of asking questions. The important principle to remember is that the mediation is the parties’ opportunity to discuss with a third party their case and also their needs, positions and interests. The Mediator having explored each party’s case with the respective party may well ask the party’s permission to tell the other side what is being said and if consent is given, can and should act as a messenger passing information, offers etc. between the parties but without entering into discussions as to the validity or appropriateness of any offer. In order to inform himself the mediator will probably ask each party to give a view as to the time to trial and the time at trial, the cost of the action, the chances of success, what will happen if the case is lost.
4. The mediator will ask the parties as to whether either is prepared to make an offer to settle (and whether there is any room for movement from an opening offer) and convey the offer to the other side. After the offer process has started the mediator will encourage the parties to narrow any gap between them and if agreement is reached assist in drawing up an agreement to be signed by all parties and the mediator. Once the agreement has been signed it is regarded by the English courts as binding and enforceable through the courts.

N.B
If time is short and the parties consent the exploration of each other’s case can be in the same room. If however there is adequate time it is probably better to explore the respective parties’ positions with each party being in a separate room and move between the parties narrowing the points of issue if possible, exploring the interest needs and positions of each party and enabling the parties to ventilate their feelings and then to concentrate on a possible settlement. The following techniques are helpful:-

What’s it all about?

The Mediator has to understand what the case is all about and although on the face of it the case may be about perhaps money, faulty goods etc. there may well be other issues, which although side issues, are important to finding a settlement. The Mediator should essentially therefore say is this a case about money or are there other matters which you need to explore and then invite the parties to prioritise the issues.

Once the Mediator knows the issues and the outcome desired by each party he or she is then in a position to start the mediation.

1. THE ANCHOR POINT

In deciding how to approach the case the Mediator must start by knowing the outcome desired this what is known as a fixed point. In other words he knows what the parties are aiming at. The only question then is how that journey from their present position to the fixed point that they want can be undertaken. An example would be making a journey where a number of different modes of transport are available and the decision as to how that journey is undertaken depends upon the various needs of the parties, e.g. time, cost, convenience etc.

2. PIN

PIN is a well know concept in mediation and it stands for position, needs and interests of each party. The position of each party will undoubtedly be the documents laid before the Mediator. Interests, this will be the middle position, probably a desire to settle and if it is a cash matter to settle between defined minimum and maximum figures.

Needs, it may well be that one party who has an apparently fixed position and a maximum or minimum middle position has a specific problem which may be personal to him or her or a business problem such as a debt situation which means that they are prepared to settle outside the normal accepted range.

3. PROCESS AND CONTENT

Although it is sometimes very difficult to separate process from content the Mediator is only concerned with the “how” in other words what process should be followed in order to get to the position that the parties wish, the parties have complete and continuing control of the “why” that is why they wish to get to a certain position. The Mediator must always bear in mind that he or she is not concerned with the content of the dispute only with the process of solution.


Mediator’s Qualities

Mediators must:-

(a) be confidential
(b) neutral
(c) non judgemental
(d) achieve symmetry
(e) empathise with both parties
(f) try and strike up a rapport with each party

This can best be done by asking questions but also by creating a structure through which to work.


Structure

Before the mediation can start the Mediator must agree a venue and should receive the pleadings that he or she can read at leisure to understand what the case is about. The Mediator then issues an agreement to mediate to both parties for them to sign and return with a fee, if appropriate.

On the day of the mediation the Mediator should:-

(a) arrive early.
(b) meet and greet each party.
(c) create a safe environment for each party and set the pace of the mediation e.g. “is it your first mediation?” and try and put the parties at their ease.
(d) assist the parties to relax, reminding the parties that the proceedings are confidential and that the Mediator is not in a position to provide any opinion during the mediation.
(e) identify the decision making unit. This might be simply each party, it might be each party and their respective lawyers, it might be each party, their respective lawyers and their experts.


Object

Advise the parties that the object of the Mediation is to achieve a settlement that both parties are comfortable with. To do this he/she will have to establish the type of case (is this an integrated case where there are several issues that require to be addressed in which case they ought to be prioritised) or whether it is distributive, in order words simply for money.

Ensure the parties are fully aware of the Legal Costs and Process

A matter which is often known to the lawyers but not to the parties are the following four elements, namely:-

(a) Costs to date
(b) Costs to trial
(c) Time to trial
(d) Costs at trial

So once the position of each respective party is known it is a matter of practice to invite each party’s lawyer to tell the mediator the costs to date, time to trial and costs to trial and costs at trial. These (and possibly local factors) can then be factored into any equation.


How Far Apart? (Mind The Gap)

Although it is not easy to do this face to face mediations where all parties are present it is normal for the Mediator to invite the Claimant through their representatives to state:-
(a) how much they want, and
(b) how much they would be prepared to settle for.

Likewise the Defendant would be asked to provide the Mediator with his or her minimum payment which might well be nil, the maximum payment that he or she would go to to resolve the matter. The only certainties of this calculation is that the parties will either be a certain distance apart, equal or that there is overlap. If the Mediator knows the costs to date and the cost to and at trial it is not unusual to find that by simply factoring in the costs the gap between the parties can be found to be very small. The Mediator should, as soon as he/she has identified the gap, try and keep the parties concentrating on that issue rather than allow them to go back to their previous positions where the gap would undoubtedly be wider. At this stage of the meetings the Mediator will have to exercise considerable control.


Joint or Separate Meetings?

At the very beginning of the mediation when the parties have assembled the Mediator will have to stress confidentiality and satisfy himself or herself the parties present have the authority to deal with the matter. It is suggested that there should first be a preliminary meeting with each party taking no more than about five minuets where the Mediator’s position can be explained to each party and each party can be assured of confidentiality. It is then up to the Mediator to decide whether there will be a joint meeting which is not at all unusual or whether there will continue to be private meetings.


Advantages

In a joint meeting the Mediator will invite each party to state their position in the presence and hearing of the other. If the time is short or the atmosphere is right he can continue with the joint meeting. If however there are signs of tension he should after the separate statements have been made invite each party to go to separate rooms where he will see them in private. In the private meetings the Mediator will assure a party that he will not reveal to the other side any confidential information given to him and that if he is required to disclose what has been said to him he must have specific authority from the person making the statement or that person’s lawyer. If he is instructed to make a statement which he thinks will inflame matters he should question whether or not that is wise. The only advantage of a continuous joint meeting from the start of the mediation is the saving of time but a continuous joint meeting may well be helpful at the end if the parties are close to settlement.

Most mediations start with:-

(a) private sessions
(b) a joint session
(c) more private sessions, and ultimately
(d) with a joint session where an agreement can be signed.


The Object of the Mediation (The 5 W’s)

The object of the mediation is always to try and assist the parties in reaching a solution acceptable to them with the ultimate object of assisting the parties to work out an agreement which essentially says "who does what to whom by when and what happens if it all goes wrong."

SOME USEFUL TIPS

Ask Questions

Questions can be very useful in concentrating the minds of the parties upon the outcome and upon the respective weaknesses or strengths of their cases.

Making Offers

Very often parties come to the mediation with entrenched fixed positions unaware of the costs implications and the time element and again very often parties will make unrealistic offers to try and settle, a Claimant aiming high and a Defendant aiming low. In discussion to what each party expects or wants it may be helpful to say “may I float this idea to your opponent?” If they say no then the Mediator cannot do so. Perhaps another way of putting it is that “it might help us to move forward if I were to make an opening offer to the other side”. But again if that is not permitted the Mediator shall not do so.

The important think to remember is that in most cases neither party really knows the other party’s case, they certainly do not know their bottom line and it is not at all unusual for in mediation one party to say after the initial statements and the first private sessions, “this is the first time we knew what the other party was seeking” and then you can be sure that at that stage there is going to be some room for movement.

It is very important to have symmetry and for each party to feel that you are spending as much time with them as you are with their opponent and again stress confidentiality.

Although the Mediator is non judgemental he or she can ask such simple questions as “do you think the Judge is likely to follow that line or argument?” or “what if the Judge fails to be with you on that point?” “What if” is a very useful couple of words to use when exploring the strengths of each case. Ask each party how they value the case and to explain their figures so that you can understand them, again it may be that this questioning effect will have the affect of concentrating minds and also help them to resolve outstanding issues.

Worse Case Scenario

It is a good idea to invite each party to consider a worse case scenario. “What happens if I win? What happens if I lose? What happens if I win but do not get costs?” etc so as to try and help them to a sense of perspective.

Praise the parties if they seem to be moving even if only a little, words such as that may be very helpful or congratulate you on having moved from your original position, (you obviously do this in private session but it helps to retain the parties confidence in the Mediator and to help movement). Remind the party that the other side has moved too if that is the case.

Explore Creative Solutions

If you have reached an impasse ask the parties “What would do it for you? You may be surprised at the answer.

Whilst the Mediator is not required and should not suggest solutions with the words, for instance, “I think that the following might clinch it… or You could do ….” you can put it a different way “what if you were to approach it this way or that” or “I have known of cases not dissimilar to yours where the result has been ……….” Another useful phrase is “how unattractive would it be to you if the other side were to offer….?

Don’t forget that the financial settlement isn’t the only way and that Credit Notes, the undertaking of work by one party for the other at a discount, the provision of goods at a discount or even for no payment, often help to secure a settlement which would otherwise be beyond the parties. Such ideas can be floated by the words “What if…?”


Differences

If the parties are very close to a settlement then it is likely that the case will settle on either:-

1. Split the difference, question if each party is prepared to move by making a revised offer to achieve a settlement and not have to go to Court.

2. Last best offer, explaining to the parties that they are moving but have not moved far enough (good news, bad news) and then compare the difference to the cost of fighting and the advantages of settling now so that each party can move on rather than having to wait months or even years for the matter to be decided by the Court.


The Auction or Sealed Bids

This is a high risk strategy and involves asking each party to write down what they would be prepared to accept/pay to see the matter resolved, the mediator then compares the figures and will comment on the gap rather than the figures themselves but without being too specific. A useful phrase could be that the gap between them is less than the costs if that is the case or perhaps that it is bridgeable if the mediator thinks so when the parties can be encouraged to improve their bids. It is high risk and shouldn’t be used at the start of the mediation but it sometimes works towards the end and you could keep that in your locker.


The Lawyers

If there is an impasse it is not unknown to call the lawyers out and say to them both at the same time that clearly their clients are relying upon them and ask them to go back to their respective clients and discuss the options of settling now and getting some sort of settlement reminding them that their clients are facing the risks and costs involved in litigation if settlement cannot be achieved.


Summary and Tips

It will be seen from what I have said the process is dynamic and depends very much on the parties and on what each party wishes but a solution agreed to by both parties is clearly in the interests of the parties.

Remind them that it is their day, you are merely trying to help, that whilst it would be unfortunate if you do not settle it is not your case it is theirs and if they feel they must go to Court then so be it but if they feel that there is another way out you are happy to help them. Parties do find it very empowering to be told that they have the solution in their own hands.

It is good technique to keep good eye contact with the parties, to show that you are listening by nodding and you can use such phrases as “I fully understand your position” or “I can see where you are coming from” that shows you have heard them and have understood it. It is not necessary to show that you approve merely that you understand.

Given the task it is sometimes quite good after you have spent time with one party to say that you are now going to see the other party, remind them that you are going to spend an equal amount of time with the other party, obviously take instructions as to what you can or cannot tell the other party and under no circumstances go beyond what you have been told that you can disclose.

Different parties require different techniques and you should really adjust your techniques to the parties before you and develop them with practice.

If you were dealing with small value cases do not assume that they are any less important to the parties or that any smaller amount of time needs to be spent on them.

Expect movement in the last half hour of the mediation. You usually find that you get some movement early on once the issues have been established but sometimes you get to an impasse. Do not assume because there does not seem to be any movement that you are not going to be able to help the parties to settle it might be a good idea however to call the parties together. One technique is to call a joint meeting, congratulate each party on the movement that they have made, explain that there is still a difference and invite the parties to go back to their respective rooms and see if they can find a way of resolving the difficulties.

Sometimes it is necessary to say to the parties “well I am sorry it does look as if this matter is going to go for a trial” and simply remind them of the time factor and the costs. In Small Claims cases it is very often the non financial things which need to be dealt with and sometimes a simple apology can help to unstick a situation. Also if the parties are in person it may be helpful for them to know the procedures which the Court will expect them to go through before they get to trial.

Mediation is a dynamic art, some people are born mediators they can gain the trust of the parties quickly and retain that trust, other mediators have to work at it but it is a thoroughly valid way of resolving disputes and in some cases, particularly those involving non financial issues, it may be the only way.