Managing Mediation

Last week I briefed a number of Legal Expenses Underwriters about mediation in civil / commercial litigation.

We discussed some of the subjects covered in my previous blogs:

The 20% increase in mediations reported in the recent CEDR Biennial Audit; the support for ADR from the Judiciary and also the possible recommendations of the Civil Justice Council Final Report on ADR expected next month. All are pointing in the direction of greater take up and use of mediation.

We touched on the cost savings that follow from mediation, the costs sanctions for the "unreasonable" failure to mediate, the risk mitigation opportunities for parties and the Holy Grail of client satisfaction arising from settlement.

It is always more rewarding when a presentation becomes a conversation and I thought it interesting to share some preliminary ideas as to what might comprise a mediation checklist. What are the factors that might provide an indicator that mediation might be considered as a settlement tool?

Multi-party actions – the greater the number or parties the more likely that mediation can hasten discussion and resolution.
Dysfunctional communication between professionals or clients – the assistance of a mediator can improve the quality of communication between parties. Does a case stand out as having a “difficult” opponent? (Indeed perhaps you are the “difficult” party??!)
Case types – probate and boundary disputes will often have a high level of emotion hampering objectivity and an outcome that is rapidly diminishing as costs build.

Court Orders / Protocol directions: review any Court orders or Pre-Action Protocols. Have directions relating to ADR or mediation been complied with?
High costs / Damages ratio – if it is a case where the legal costs seem likely to dwarf any damages then do consider mediation – before you get in to arguments about proportionality. You do not want to be the Court of Appeal test case on the point!
Trial – trial seems inevitable, everything has been tried…or has it? Mediation can help to resolve many of the most difficult issues.
The factors above do not form an exclusive list because every case is different but the objective is to provide the opportunity to identify cases amongst a portfolio where ADR opportunities may have been overlooked. Indeed whilst the conversation arose from the premise that the factors were relevant to a portfolio of litigation they would also apply to the individual case. There will be other case specific factors and not every case is suitable for mediation but the list is offered to reflect the greater emphasis placed on ADR by the Courts.