As the result of the introduction of the Simple Procedure (anything but) Rules in sheriff courts in Scotland in November 2016, many sheriffs now invite civil litigants to consider mediating their disputes (valued up to £5000) before the sheriff will fix a hearing of evidence/proof.
Mediators (including me) from the University of Strathclyde mediation clinic (USMC), set up by Charlie Irvine (who teaches the LLM/MSc in Mediation at Strathclyde), provide a pro bono mediation service at a number of sheriff courts in central Scotland, including Falkirk, Glasgow and Paisley. They are present in court when the case first calls before the sheriff-and mediations often take place immediately (although sometimes it is arranged a couple of weeks hence). Often these mediations involve party litigants on both sides-but sometimes mediators will encounter a situation in which one party is legally represented by a solicitor, but the other is not. There is then an immediate and apparent power imbalance between them, with one unlikely to have significant legal knowledge. What should the mediator do?

The overriding principle in mediation is the need to maximise parties ‘self-determination. Some mediators (specifically those who practice transformative mediation) take the view that they should not provide any information (legal or otherwise) to parties and should not seek to power balance as between a weaker or stronger party. They take this view because they feel that intervention breaches the mediator’s neutrality and impartiality, amounts to taking sides and undermines self-determination. Other mediators take the opposite view (including many, but not all, facilitative mediators and most evaluative mediators) and they feel that true self-determination can only be practised by parties if they have adequate legal information enabling them to provide genuinely informed consent to any agreement they reach.

What do I do?
Mediators are not there to give either party advice about the merits of the dispute-who has the stronger contractual case in a commercial dispute et cetera-that is not their job. Although they can and do ask awkward, reality testing questions, of participants in private confidential meetings while helping them think about risk.

What mediators can do, and in my view should, is provide both parties (including the party litigant and the legally represented party), privately, with information (legal) about how the court process actually works, what the expenses rules are and in particular how Tenders (judicial offers by defenders to pursuers) work in conjunction with those expenses rules. If the sum sued for is more than £3001 up to £5000, then in the event a defender Tenders say £4500, and the court awards say £4000 after a hearing (where the pursuer doesn’t accept the Tender and therefore fails to beat it) the court will award full legal expenses (from the date of the Tendered offer) in favour of the defender against the pursuer. Where the defender has a solicitor, those expenses could run to many thousands of pounds, particularly if expert evidence is led as to commercial loss. This could leave the Pursuer in a position where he has ‘won’ his case but owes the defender a lot of money.

In my view, a mediator whilst in private confidential session with a party litigant, should explain the impact of that party litigant failing to beat a Tender, in conjunction with the discussion with that litigant about financial risk, where we, as mediators, as a matter of course, discuss Best Alternatives to a Negotiated Outcome (Batna’s) and Worst Alternative to a Negotiated Outcome (Watna’s).The same explanation should be given to the other party. Failure to do so amounts to entrenching the unequal power imbalance one is presented with and risks making mediation unfair.

Posted by Paul Kirkwood, a Commercial Mediator who has also practised as a litigation solicitor for 24 years. He is a director of MNCRS (www.mncrs.co.uk) Mediation, Negotiation and Conflict Resolution Services.