Blessed are the peacemakers

Mediation is an essential accessory in the toolkit of every litigation solicitor. Liam Guidera provides a practical perspective for solicitors who are engaged as advisors on behalf of parties involved in mediation, and examines the different stages and potential pitfalls involved

In the March Gazette (p20), our colleague Michael Peart, former judge of the High Court and Court of Appeal, wrote on the obligations of solicitors under section 14 of the Mediation Act and set out very cogently the many advantages of mediation.

A recent article in a British law journal opined that the term ‘ADR’ was now largely redundant – in that mediation is no longer an ‘alternative’ form of dispute resolution, but rather is a key element.

Mediation is defined in the Mediation Act 2017 as meaning “a confidential, facilitative, and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute”.

Given the significant obligations imposed by section 14 on all solicitors prior to the institution of proceedings, the prospect of mediation will therefore be in the minds of parties and their lawyers from the very early stages of any dispute.

It is a given nowadays that any significant legal dispute will be referred to mediation at some point, and the party who refuses to partake will need to have very good reasons for doing so if they are to avoid the risk of an adverse costs order (section 21).

Hunger and thirst for justice

There has been a recent significant decision of the High Court where the judge, on becoming aware at hearing that the plaintiffs had not been advised of the advantages of mediation as required by section 14, adjourned the proceedings to allow such advice be given.

On the conclusion of the case, he disallowed the plaintiffs a small portion of their costs because of such non-compliance. However, he indicated that, in future cases, the court might not be so lenient (see ‘Speak to me’, July Gazette, p26).

Such an approach is also reflected in a practice direction (HC127) that recently came into effect concerning the setting down of matters for hearing in the non-jury list of the High Court.

A new trial summary form requires that confirmation be provided as to when parties complied with their obligations under section 14 and whether there have been any attempts to settle or mediate the dispute.

A key question then is: when should the mediation process be engaged? Timing is key to the successful resolution of any mediation, and there is generally a ‘sweet spot’ in the course of all proceedings when it may be best engaged.

The initiative may come from the court, and most judges will encourage or perhaps even direct the parties at early case-management hearings to engage in mediation.

Most experienced practitioners believe that, generally, the optimum time for mediation occurs once the pleadings have closed and before the discovery process begins. This provides the parties with the benefit of having learnt quite a considerable amount about their opponent’s case, but before incurring the sometimes crippling costs of discovery.

Conversely, at times, a party will want to complete the discovery process so that they may understand fully the true strength of an opponent’s case before engaging in any settlement discussions. In terms of costs savings, clearly the earlier a mediation occurs the better.

Pure in heart

Having crossed the Rubicon and decided to mediate, the next practical issue facing the parties will be to agree on a mediator. I have found that the practice of writing to an opponent suggesting a number of possible mediators and receiving further nominations in return is rarely productive.

It is far better to engage directly with a colleague and to seek to agree on the mediator. There are many choices of mediator available.

A mediator’s skills are not necessarily exclusive to lawyers, although in legal disputes it is usually preferable to engage a lawyer mediator. Apart from many colleagues, solicitors and barristers, there are now several retired judges offering their services as mediators.

You should also bear in mind the option of engaging foreign mediators. I have worked with both UK and US mediators, who can bring the advantage of great experience, complete impartiality, and a different approach to certain types of cases.

US mediators tend to be more directive and proactive, which may suit a particular type of corporate client.

Practitioners, I think, make the mistake of trying to seek out a mediator with an expertise in the particular legal issue(s) involved. However, an ability to empathise and to communicate well with the parties is a more important attribute than any specialist knowledge.

Once a suitable mediator is appointed, the real work of the legal advisor begins, in assisting the mediator to prepare for the mediation. In most cases, this will involve a kick-off process meeting between the mediator and the various legal advisers involved.

The mediator will decide with the advisors the form the mediation should take, whether position papers are required to be exchanged, and the preparation of a booklet of relevant documentation to be agreed between the parties. An experienced mediator will sense very quickly the optimum form of mediation that is required.

It is important that a comprehensive mediation agreement be signed at the outset, so that all parties to the process understand the various obligations involved, particularly confidentiality.

The agreement will serve as a useful guide through which you can explain the process to your client. In my firm, we also have a detailed memo, which we provide to the client at the outset.

They shall be satisfied

Nowadays, most mediators do not follow the traditional convention of a formal one-day live mediation, beginning with a plenary session and then moving on through a series of break-out meetings through a long day, often ending in the small hours of the following morning.

In my experience, it is essential that at least one detailed preliminary meeting take place between the mediator and each of the parties involved some days prior to the mediation, and sometimes further meetings will be required. This helps to ensure that the actual mediation is much more efficient and productive on the day.

It may well be that the preliminary meetings can be held remotely, and sometimes the mediation itself can be run remotely or in a hybrid format if the parties/advisors are abroad, are elderly or infirm, or relations between the opposing sides are such that direct engagement would not be productive.

On the day of the mediation, it is critical that the decision-makers on both sides be present, so that a binding settlement agreement may be concluded. Any necessary expert advice, typically financial or tax, should also be readily available.

Mediators now tend to be more flexible about the benefits of exchanging formal position papers. If they are exchanged, then there is a lot to be said for keeping them as limited and succinct as possible, rather than mirroring pleadings.

Likewise, the booklet containing all of the relevant documents should be kept to a manageable size, in deference to the mediator, and typically should not exceed one or two lever-arch files.

A city on a hill

By the day of the mediation, a rapport should have been established between the parties, their legal advisers, and the mediator.

Solicitors are often uncertain as to whether counsel should be involved in the mediation. Generally speaking, I would ask counsel to come along if it is envisaged that advice may be required from them throughout the day and their assistance required in drafting a settlement agreement if the mediation is successful.

Both solicitors and counsel need to understand that their role at the mediation should be supportive, rather than treating it as some form of hearing or contest. Plenary sessions have fallen out of fashion for this reason.

The more open the parties are with an experienced mediator, the better the chance of success. Clients can often struggle to understand the true role of the mediator and believe that they somehow need to convince him/ her of the virtues of their case and to be in a position to prove various assertions or points.

It is best, if there are a number of clients and/or advisers, that one or two persons are appointed as spokespersons, so that the mediator is not faced with a chorus of voices.

A tactical strategy should be worked out with the client in advance as to what offers are to be made and when. The mediator’s advice can be sought during the mediation as to when or how to best frame an offer.

They shall be comforted

It is a simple but important detail that the mediation should take place at a comfortable, neutral venue. The parties should be free to move about during the day and be suitably removed from each other, so that the chances of any accidental encounter are minimised.

It is important for the parties to take regular breaks, get some fresh air, and adequate refreshment to maintain energy levels through what is a long and demanding day.

The duty of the legal adviser is to ensure that their client does not become exhausted by the process and completely understands the negotiations, and that they are under no pressure whatever to arrive at any agreement until all issues have been resolved to their satisfaction.

During the course of the day, it is important to record in a detailed attendance the various offers and counteroffers made, and to time these together with details of whatever information the mediator has imparted to your room and what they have been authorised to take back to the other room.

Mediations are long days, where points of detail can very easily be overlooked. Most mediators will try to conclude a mediation on the day rather than reconvening. It can be the case that some disputes do require more time, perhaps a second or even a third day in complex disputes.

Many cases do not resolve on the day, but ultimately settle in the weeks following the mediation, as both sides will have learned a lot about each other’s case and may reassess their own position.

Inherit the earth

The final key event then, assuming that the mediation has been successful, is to sign a comprehensive settlement agreement. This drafting is an art in itself and most mediators will not want to get involved, although I have seen a US mediator take on full responsibility to great effect.

In a recent judgment of the Court of Appeal (Carthy and Others v Boylan and anor [2022] IECA 145), the court confirmed the importance of a well-drafted settlement agreement, and it is clear that, as a matter of policy, the courts will enforce such agreements in all respects.

While no two mediations are the same, I firmly believe that by working with an experienced mediator and trying to engage wholeheartedly in the process from the outset as described above, the parties to practically any dispute have a unique opportunity to settle even the most complex and acrimonious disputes.

Liam Guidera is vice-chair of the ADR Committee of the Law Society, an accredited mediator, and a partner in the dispute resolution group at Mason Hayes & Curran