A moment on the lips

The pandemic has transformed how our courts are run and has forced us to be innovative in how we conduct our businesses. Mediation has an even more important role in this new reality than it had before, says Patrick Moylan.

The COVID pandemic has caused the entire legal system to look at itself and find new ways of doing things. Courtrooms are cordoned off with warning tape and signs to govern social distancing. The ability for parties to a dispute to spend the day in a courthouse negotiating the terms of settlement is gone.

What cases are still going on for hearing are doing so within a completely new rules structure. Parties must arrive at a certain time, enter the courthouse in a certain way, and leave in a certain way. If settlement is to be attempted in these cases, it will be done in the most pressurised of circumstances.

If settlement is reached and a party is subsequently unhappy with that settlement, then they will often criticise their legal advisors for allowing them to settle in that way – yet every lawyer knows the value of a settlement in circumstances where the outcome of a court hearing is unknown.

The solution

While this dilemma unfolds, there exists a potential solution in the Mediation Act 2017. Section 14 of the act requires a solicitor to provide a client with certain information regarding mediation prior to the issuing of legal proceedings and to certify the provision of same when issuing proceedings.

So, the question arises as to whether this suggestion of mediation to resolve the dispute has become just another box that must be ticked in the pre-litigation process, or whether it is really something that can benefit a client and the client’s legal representatives.

The courts have long since seen the benefits of alternative dispute resolution. When a case is heard in court, a judge must make a decision that will usually be in favour of one party or the other. It is a case of ‘all duck or no dinner’.

Methods of alternative dispute resolution, and in particular mediation, can soften that edge somewhat. A mediated settlement agreement will usually have some compromise on both sides.

It is very much akin to the traditional type of settlement that used to be thrashed out over the course of a day in the court building, but which can, for the moment at least, no longer occur. A mediation, on the other hand, can still take place in a socially distanced setting while ensuring health-and-safety guidelines are adhered to.

The process

For those solicitors that have not been involved in an actual mediation – and, from the scarcity of mediated settlements, there must be many – the following is a brief overview of the process from within. To assist in this regard, the mediation process may be broken down into a number of stages.

Pre-mediation
This is the stage of the process that occurs in the lead-up to the actual mediation itself. The mediator is chosen, usually by the parties’ solicitors. The venue is chosen and is normally neutral, with at least three rooms available: one room for each side and one for the mediator.

The size and location of those rooms is a matter for the parties and can be arranged to work in our new COVID reality. Experts and advisors can be available to the parties via telephone, Zoom etc.

Other than the logistics of the mediation, the other real objective of this stage is to determine the nature of the information and documentation that is to be exchanged by the parties in advance of the mediation, and the mediator will guide the parties in this regard. This is done through the solicitors and is a non-pressurised, structured way of preparing a case. You also get a good insight into the other side’s case.

Opening joint session
This is the first part of the mediation itself. Most mediations begin with an opening meeting at which the parties, their representatives, and the mediator is present. Many hotel meeting rooms are of sufficient size that this meeting can be done in a safe manner. The parties will usually make an opening statement regarding the dispute, and the mediator will set out the ground rules for the mediation.

Private sessions
In this stage, the mediator meets privately with each party and attempts to help them reach clarity on what exactly is in dispute and what the potential solutions might be. These meetings are entirely confidential, and no information is given to the other party unless expressly agreed. There may be many rounds of these private meetings to distil the dispute and any potential matters that might assist in reaching an agreement. The best and worst alternatives to a negotiated agreement may be explored.

Negotiation
At this stage, the parties attempt to negotiate a settlement of the dispute with the assistance of the mediator, who challenges the parties to explore their strengths and weaknesses. Working groups can be set up – for example, having the parties’ engineers liaise with one another to work on a solution.

Closing joint session
If a mutually acceptable settlement is reached, the mediator invites the parties’ lawyers to draw up the legally binding mediated settlement agreement, which is then signed by the parties. The mediator will usually then call a closing joint session.

At this session, the mediator will outline the agreement in broad terms, and the parties will often close the mediation in a positive manner – historically with a shake of hands, but perhaps with some other form of acknowledgement in the current circumstances. The process may sound quite procedural (and in some ways it must be) but, in fact, when one is involved in a mediation, it more resembles a courthouse-type negotiation. Substitute the courthouse meeting room for the private socially distanced sessions, and they are not that different.

Obviously, up until COVID, the courthouse settlement was a mediation that happened as a matter of course. COVID has put paid to that. Mediation can now provide the solution by way of a properly explored and negotiated settlement that is done in a less pressurised environment.

The benefits

There are multiple benefits to mediation.

Time
In the new COVID world in which we live, a party may enter a courthouse at 2pm and leave at 3.30pm, having had their case heard and determined by a judge. The judge will no doubt provide as much opportunity as possible for the parties to ‘talk’. Some judges are accommodating this by operating two courtrooms simultaneously but, nonetheless, the judge has to ultimately determine the case.

That is, after all, why he or she is there. Often the parties will have had years when they could have negotiated but, without the forum, never did. The forum used to be the courthouse on the day of hearing. That is no longer the case. Mediation can step into that void and provide the parties with a structured forum within which to negotiate and attempt to resolve their differences.

Ownership
The forum and the structure of a mediation provides the parties with great input and ownership of the process and the outcome. There is a certain time pressure, such as the limit of the hours in a working day. This is good, as it prevents procrastination by the parties but, at the same time, there is not the extraordinary pressure that the COVID-era courtroom could place on parties trying to settle a case within such a short period of time, while they are effectively at hearing, with a judge checking in on them.

Costs
Litigation is costly. Mediation is less so – but there are still costs. The parties must prepare for the mediation, often as they would for a case, and they must pay for the mediator and the venue, the costs of which are usually shared equally.

Flexibility
The mediation process encourages the parties to consider all solutions and to be creative and open-minded. This can often lead to a much more tailored solution to a problem than might otherwise be envisaged. The process is also somewhat flexible, and elements can be added to suit the case, such as a site visit with the engineers if the dispute centres on physical property, for example, or consultation with experts via conference call or Zoom.

Confidentiality
When you probe a client, what they often fear most about litigation is the publicity of a court hearing. Clients do not realise that most cases are not reported on in any way, and even pre-COVID, there were very few members of the public in court.

People by their nature like to keep their disputes private. Many dread giving evidence, and in their minds visualise courtrooms filled to the rafters with everyone enjoying the spectacle of cross-examination.

All of these fears, justified or unjustified, are allayed and avoided by the mediation process. There is no need to give evidence. There is no cross-examination. There is no public. The whole process is private, and the outcome is private.

The settlement

Section 11(2) of the Mediation Act provides that, once a mediated settlement agreement has been concluded and entered into by the parties, then it is a legally binding contract between those parties.

The main caveat in this regard is in respect of family-law mediated settlements, which must be ruled by the court in judicial separation and divorce cases – where, of course, the court retains its discretion as to whether or not the settlement represents proper provision for the parties, and where the best interests of children may be involved.

The statute

Section 18 of the act provides that the period beginning on the day on which an agreement to mediate is signed, and ending on the day that is 30 days after either a mediated settlement is signed by the parties and the mediator, or the mediation is terminated, whichever first occurs, shall be disregarded in reckoning the time period for the purposes of a limitation period specified by the Statute of Limitations.

The conclusion

The COVID-19 pandemic has had a huge effect on the world and how we live. It has transformed how our courts are run and has forced us to be innovative in how we conduct our businesses and progress our cases. Mediation has an even more important role in this new reality than it had before.

It can provide parties with a safe forum or process in which a properly explored and negotiated settlement can be reached for the benefit of the parties, which will ultimately benefit us as their lawyers in having satisfied clients. For mediation, the time has come. 

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