I was pleased to be invited by Chris Phillips, Partner at Thorntons solicitors to provide a CPD presentation on commercial mediation in practice at the Edinburgh office and video linked to their Arbroath, Cupar, Dundee, Forfar, Kirkcaldy, Montrose and Perth offices.
I speak from personal experience when I say that Thorntons solicitors use commercial mediation as an appropriate form of dispute resolution to resolve difficult commercial cases. They do so in the interests of their clients and have assisted them in avoiding the very significant costs of litigation as a result on these occasions. They are to be highly commended for this.
I felt it was important to introduce Chris and his colleagues to a bit of the theory that underpins how mediators actually practice in commercial mediation and why we do what we do. To that end I introduced them to four models of mediation: transformative, facilitative, strategic/directive and evaluative. Thereafter the presentation focused strongly on what actually happens in practice-including the pre-mediation meeting phase- which is crucial- and thereafter on the mediation meeting itself. I illustrated this with anonymized anecdotes taken from real life mediation.
I was very pleased to have an interactive audience who asked pertinent questions and were engaged.
Stephanie Watson, Associate was keen to know how many days a mediation lasted. My experience is that they are usually booked for one day-but they can often run on well into the evening, sometimes ending around 10 pm. I recently undertook a commercial mediation which lasted 22 hours without stop. Reflecting on this I felt in response that if a mediation was likely to run for 12 hours plus, it probably made more sense to book 2 days back to back, thus allowing parties to recover and consider matters afresh the following day-having had time to reflect overnight.
Chris recounted his involvement in a mediation previously, where such an overnight reflection caused parties positions to harden; and wondered if in fact it would have been better to keep up momentum towards settlement? I have been in mediation over two days involving a couple arguing over very significant assets where overnight reflection did cause hardening of positions (especially after legal advice was revisited!), but nevertheless a settlement was still reached. Whilst it may mean a mediation takes longer to reach resolution, perhaps it may be better to allow people a rest-people can make poor decisions when they are tired. That said, Chris is also right when he observes that mediation generates momentum towards resolution, and one does not want to lose that. I’m not sure there is a correct answer to that conundrum-it has to be a “horses for courses” situation.
Lydia Papandrianou wanted to know if the many mini joint meetings, between representatives of the different parties to talk about specific issues, which take place throughout the mediation day, were scheduled with a clear agenda-or were these meetings something that arose effectively spontaneously? The answer is often the latter. Parties and the mediator will have considered in advance where there are significant areas of disagreement that needs specific and separate discussion in mini joint meetings. The meetings and their specific participants are usually decided upon on the day, by agreement-the participants identity can change. My experience of this is that mediation is very flexible and versatile and can be adapted to suit the needs of the specific mediation without difficulty.
A very interesting question came from Lee Corr, a solicitor in Thorntons Dundee office. I had talked at some length about the fact that expert witnesses are often present at mediation, and that their evidence is often exchanged in mini joint sessions, with each party putting forward their understanding of the matter, whilst the other listened and then vice versa. Both are then able to question each other and test by way of discussion each other’s evidence. Mediators are always present during these discussions, and often, although not always, solicitors or counsel. There is no ‘cross examination’ led by lawyers-rather a more informed dialogue between experts-with challenges to each other’s suppositions, propositions and the factual basis of their evidence. Lee wanted to know if this exchange of expert evidence was like ‘hot tubbing’? I had not heard that term used before in conjunction with mediation and said so. I also said that in my experience, it did seem to me that the exchange of expert evidence in mediation was like the actual experience of hot tubbing and the expression seemed apposite.
I went away and researched this. I discovered that in England under the Civil Procedure Rules, part 35, they have been developing new methods of ascertaining/taking expert evidence. Hot tubbing is the colloquial term for a court process of calling expert witnesses to give evidence and be cross-examined at the same time. In Australia the process is called Concurrent Expert Evidence (CEE). The process can involve questioning by the judge or counsel. A hybrid form is allowing the experts to interact with each other whilst in the “hot tub”, while they give evidence in the witness box in court!
My experience of commercial mediation is that when experts do get together and interact-it really is like hot tubbing-and I consider it an apt metaphor for the whole process of mediation. At its best this exchange of expert evidence can be very useful, informative and helpful for all parties concerned-it helps that process that it is the experts who are interacting, rather than being cross-examined by counsel-because it makes the process less fraught. Often the clarifying questions can come from the mediators themselves as they seek to make sure that they and all experts/parties understand the propositions and evidence being advanced. This enables the expert witnesses to take back their new understanding to their own rooms, and in my very recent experience helps unlock the dispute and lead to resolution. I am indebted to Mr Corr for his excellent question!
Commercial mediation can help lawyers assist their clients to have a better outcome from legal disputes and litigation. It isn’t an either or-lawyers and commercial mediators work in tandem, to the benefit of all.
If you would like me to come to your firm to talk about commercial mediation and its practice, get in touch with me at paul@mncrs.co.uk or call me on 07788 10 1280. There is no charge and I am happy to come to you.
Paul Kirkwood is the director of Mediation, Negotiation and Conflict Resolution Services, you can visit the MNCRS website here. He writes about mediation and its practice on this paulkirkwoodmediator.co.uk blog. Paul is a commercial mediator registered with Scottish Mediation and a litigation solicitor registered with the Law Society of Scotland.