The 4 factors that can facilitate mediation

Successful mediation hinges on four factors McCann FitzGerald partner Helen Kilroy told a Law Society seminar on mediation in the civil justice system yesterday afternoon (pictured above far right).

These are:

• appetite to mediate,
• capacity to do so,
• the meeting of needs,
• good timing – where a client can take the discount involved in mediation.

Legal toolkit

While mediation is now an established part of the legal toolkit it remains under-used.

The appetite for mediation usually stems from a deficit – an inability to fund the case or to produce evidence to prosecute or defend the case, or an inability to face the financial risk of losing the case.

“Funding deficits are met by taking a hefty discount as a plaintiff,” Helen Kilroy explained.

Risk analysis can establish an appetite for mediation.

Helen has practised as a mediator since 2004 and said that, increasingly, in practice, corporate colleagues now put stepped mediation clauses into contracts and these are a route to consensus.

She observed that for certain work types, arbitration has become as protracted and expensive as litigation, though it remains excellent for many types of disputes such as insurance cover.

Court congestion

Court congestion and the costs of litigation, both financial as well as relational and reputational, are also factors in the trend towards mediation.

There are common themes to pre-action mediation, the first being protecting reputation, she said.

“In a professional services partnership, you don’t really want to be down in the High Court getting an injunction restraining partner X from leaving or setting up in competition.”

Proceedings

Even the very initiation of public proceedings can damage reputations, she observed, particularly at senior executive level, and can lead to relationships irretrievably breaking down.

A third common factor is the parties’ own established knowledge of the financial issues, where the need for discovery is not a determining factor in resolving difficulties, for instance in family business disputes.

Where there is an urgent need for resolution, for instance in a dispute ahead of a live event, mediation can resolve matters in a timely manner.

Helen Kilroy observed that the public sector is not so visible in pre-action mediation despite a high success rate.

Reflecting on the “need point”, Helen said that in the public sector, establishing the appetite to settle is difficult if nobody will “own” the dispute.

Unlike in a corporate environment, public bodies can afford to lose cases and reputation preservation  may not be the driver.

Delegated authority

“The things that drive other litigants [to mediation] are harder points to sell when dealing with a public sector client,” she said, and getting the right delegated authority, and flexibility on solutions, can be difficult.

Public procurement processes also make the suite of mediation options such as discounted claims, credit notes, or new contractual terms, more difficult.

It’s not an impossible space in the public sector, Helen Kilroy said, but it’s undoubtedly more difficult to reach mediated solutions.

Helen Kilroy said the agnostic view of the Mediation Act 2017 is that it puts best practice on a statutory footing. The negative outlook is that the act over-complicates a flexible process and puts needless rigour around it.

Problem

Financial Services and Pensions Ombudsman Ger Deering told the seminar that the there is a real problem in the financial services industry with the public feeling unable to be “heard”.

Many industry problems are the result of poor communication.

"We find that communication tends to be at the heart of most disputes," he told Gazette.ie

"Where a financial services provider has a dispute with a customer, they need to listen to that customer and understand what the impact of their actions are, on that customer.

"That's the first step in trying to resolve a complaint," he said.

Complainants to large organisations are unable to find anyone to listen to their grievance, often as a result of outsourced call centre-type management of customer service.

Interestingly, 80% of complainants dealing with small organisations, of fewer than fifty employees, had better success in being heard, than in large corporations.

Smaller organisations resolve their own disputes.

"Smaller service providers are closer to their customers and they listen to their customers better," he commented.

Resources

He questioned the standard management position of being unable to spare resources to deal with public complaints, believing they are not properly measuring the ultimate long-term costs of dealing with grievances.

Financial services providers often saw agreeing to mediate as “raising a white flag” and believe that they must show up with a chequebook and a willingness to compensate, he said.

All that is being conceded in coming to mediation is simply listening to the other party, he said.

“It is part of the problem that people see [agreeing to mediate] as an admission of guilt or a weakness,” he said despite it being an easier and less formal way to resolve disputes.

Shuttle mediation

Telephone or shuttle mediation has proven popular and is a substantial part of his office toolkit he said, perhaps because of the lack of face-to-face contact with a complainant.

In what Deering described as a complete sea-change, voluntary mediation is now the default option for the Ombudsman’s office.

In 2014, a total of eight cases were resolved by mediation and 70 in 2015, but this shot up to between 2,300 and 2,400 over each of the last two years.

Andy Rogers, of London independent non-profit conflict-resolution organisation CEDR, said that he sees a settlement rate of between 80-90% in mediation cases. Of these 74% are settled on the day and 15% soon after.

Britain saw 10,000 cases resolved through the process in 2016, even excluding the small claims court service and telephone mediation.

The total value of claims resolved stands at £11.5 billion.  More county courts are sending cases for mediation and the NHS now automatically pays for clinical negligence cases to be mediated.

Alternative pathways to resolution are being set up in fields as varied as funeral directorships, whiplash claims and boundary disputes, often in a piecemeal fashion, he said.

Rates of pay

Rates for experienced mediators stood at £1545 in day in 2016 but have remained static as more people qualify and enter the market.

Advanced mediators however, can command £3,627 daily, down form a 2016 high of £4,500.

US rates are often higher as many practising mediators have retired from the bench and are perceived as more highly qualified.

Mr Justice Peter Kelly (pictured) said he gave thought to introducing mediation when setting up the rules of the Commercial Court, which started life in January 2004.

The process has developed organically and become ever more popular since then, and he hoped that the Mediation Act 2017 would not have unforeseen consequences or become a dead hand.

In and out of court rooms, mediation is no longer regarded as a sign of weakness but seen as a sensible approach to resolving differences, he said.

Wards of court

Mr Justice Kelly has used mediation in wards of court cases and in disputed enduring power-of-attorney cases, often with dramatic success, he said, where objection is taken to an appointed person by another family member.

He observed that the Mediation Act has a lacuna in that it fails to exclude whole types of legislation, such as professional disciplinary actions, unsuitable to the process.

Mediation as a process is never exhausted, he concluded and the Civil Justice Review Group, which he chairs, is also looking at better uses of alternative dispute resolution.