These things happen in mediation…

sony_emoji_bTowards the end of a long day’s mediation the two  principals met together and managed to agree a settlement.

As they emerged from their meeting one of them took me to one side and told me how unhappy he was with the deal. I sympathised but resorted of course to the old platitude: “Well a good mediation always ends with both parties unhappy to some degree”.

At that point we both heard the sound of wild cheering breaking out in the room where the other principal was announcing the result of his discussions to his team.

Mediation, Mediocrity and Kakonomy

cr4v5miueaewnqmClassical market economics describes an efficient mechanism which optimises performance and minimises price. A kakonomy (the economics of the rotten) is an economic system in which the buyers and the sellers expect to and do exchange the mediocre.

Two Italian academics [1] give as an example of a kakonomic system with the supply of services by a lecturer to an Italian university. He knows he will be paid less than the contract rate – and late. The university knows he will give an incomplete series of lectures which are old hat. The lecturer and the university are happy with the bargain. The students are the ones who suffer.

Mediators are sometimes heard to worry that in order to succeed commercially they have to make concessions in the standards that they apply at mediations. They worry that if they were preserving the purest streams of mediation practice and insisting on high standards of communication (perhaps insisting on opening sessions, pushing for client-to-client meetings) they will be less likely to get work in future. Is this a kakonomic system? Do the mediators and the solicitors who select them make an unholy pact under which the mediator will not be too challenging in exchange for future business from the solicitor. Is there an under-current that solicitors want the mediation to fail and the case to continue? Are the clients the ones who suffer by getting a sub-standard mediation and remaining buttoned-up and unchallenged through the day?

In other words can you substitute mediator, solicitor and clients for the lecturer, university and students in the Italian example?

There certainly are mediations where the parties have strong and set views about how they wish to conduct matters (often in a very stilted and positional way) and where I have serious reservations as to whether those clients are getting the best out of the process.

Bill, no offence to you but mediation wasn’t our idea. We are prepared to listen but that’s all. If we don’t hear a number we like very shortly we’re going. And in any event Erica has a flight from City at 2.”

In those situations I have to try to insert elements of good mediation practice into the day, almost surreptitiously.

Equally it is very often the clients, particularly the experienced users of mediation, who are most forthright about their preferred mediation techniques. They will often be the most vociferous in their criticism of techniques they think are too touchy-feely, too hippyish.

And is there not something slightly patronising in the assumption that the mediator is the keeper of the flame and that the parties to the mediation are paying him to lead them out of error to the true path? These people negotiate every day, with enormous skill and without the assistance of a neutral, in their working lives. Those skills need to be invoked on the mediation day and not left at the door.

The tension between those two views is a constructive one and is going to be with us for a while. In the meantime kakonomy does at least give us a label for our previously nameless fear.

[1] Diego Gambetta and Gloria Origi, “The LL Game”

Quiet times for mediation anoraks? Just you wait…

It seems to be all quiet in England and Wales for mediation anoraks, at least for the civil and commercial kind.

Mediators don’t seem to be being dragged to court to give evidence and the Farmassist[1]  issue seems to have gone back to sleep for the time being. Predictably there is no sign of anybody making use of the new rules for cross-border mediation introduced on the back of the EU directive on mediation[2]. (If anybody is aware of a limitation period being extended or settlement agreement being registered as a judgement please do write in. Any news from elsewhere? Scotland?)

There is the usual scattering of decisions rearranging the Halsey[3] furniture in increasingly attractive formations. But it’s still the same three-piece-suite however you look at it. Nothing really to excite the afficionado.

Well, civil and commercial mediators should glance across at the employment law world for what might be a glimpse of the future.

Two seismic events have occurred there in the last two years. First a massive increase in tribunal fees (which provoked an unsuccessful judicial review by Unison, now on appeal). Second a requirement as of May 2014 that all tribunal cases must have been the subject of at least an attempt at conciliation with ACAS. Time limits are suspended while the ACAS process continues. But without an ACAS certificate confirming the attempt has been made the claim simply cannot be filed.

Result: tumbleweed blows through the employment bar as tribunal cases undergo a dramatic decline. It probably also blows through the ranks of the private mediators who specialise in employment cases. But for the government a huge reduction in the financial burden of the tribunal system presumably beckons.

In civil and commercial litigation we have just had the first of these experiences: a massive hike in civil filing fees came into force on 9th March 2015. Mediators (along with everybody else) anxiously wait to see what will happen next. The concern is of course that having been discouraged from litigating parties won’t get around to mediating either. Might they not resort to what Lord Neuburger once remarked was “that much neglected form of dispute resolution: capitulation”?

My local MP recently defended the big increase in court fees on the basis that more people would be encouraged mediate. (As he is also the Prime Minister this is quite an important conversion to the cause.) But as to what will actually happen on the ground, we shall see.

And what are the chances that we will also experience the second seismic change appropriately adjusted to the civil context:  compulsory pre-action conciliation/mediation? Far from negligible I would have thought, though if the government wants to raise revenue through these measures it presumably wants some claims issued.

The Ministry of Justice lies in that zone of unhappiness which surrounds any government department that has not had its budget ring-fenced for the next two years. It shares this small condemned cell with the police, possibly the armed services and very few others. Every option will have to be considered.

So hold on tight. Of course we have no civil equivalent of ACAS. But compulsory mediation information sessions in civil litigation could be coming to your town soon. And will the CMC’s much-expanded accreditation process come just in time to supply the neutrals of confirmed standing who will provide these  services?

Government intervention has had a radical effect on dispute resolution in the employment (and family) worlds in the last two years. Maybe things aren’t going to be so quiet on the civil/commercial front after all.

[1] Farm Assist v DEFRA [2009] EWHC 1102 (TCC) upholding a witness summons issued against a mediator against her objections.

[2] THE EU Mediation Directive came into force on 13th June 2008 requiring national governments to ensure compliance by 20th May 2011.

[3] Halsey v Milton Keynes [2004 1 WLR 3002] Court of Appeal guidance as to when it is appropriate to impose a costs sanction on a party which, though successful, had refused or failed to mediate. See now for example PFG v OMFS [2013] 1 WLR 1386

Postcard from Paris

eiffel-tower-statue-prestige_z-zClifford Chance’s Paris office sits in an elegant corner of the Place Vendome flanked, appropriately, by the Ritz hotel and the Ministry of Justice. On a bright winter weekend in early February it provided, as it does every year, the setting for the opening rounds of the ICC’s annual mediation competition.

International advocacy competitions for students like the Vis arbitration moot in Vienna are relatively long established, 22 years in the case of the Vienna competition. Mediation competitions are, unsurprisingly, a more recent phenomenon. The ICC competition this year celebrates its 10th anniversary.

It has proved phenomenally successful. From a handful of teams in 2005 it has grown to the present 65 teams respresenting 30 countries and all the continents. From the start of the three days of round robin competition on Saturday through to the end of the knockout stages the following Wednesday some two hundred 85-minute mediations are held.

The students participate in teams of two, one playing the part of the lawyer, the other the client. It may be that the student would learn more about the process of mediation by taking the mediation role him or herself. There are competitions where the students play all of the active roles in the room. But one happy side-effect of the Paris format is that mediation professionals come from all over the world to play the role of mediator as well as to assess performances in the role of judge.

The competition is now immediately preceded by an increasingly important conference for the mediators to discuss the latest ideas and trends. This is a unique chance to compare notes with mediators from across the world, the US, India, Hong Kong, Australia, Russia and the rest of Europe. There are plenty of Brits there. It was presumably quite hard to find a commercial mediator in London last Monday, February 8. Kallipetis, Howell-Richardson, Marsh, Sturrock, Lloyd-Jones, Heather and Tony Allen were all there. We like to think that this is not just a matter of physical proximity to the competition but reflects the existence of an active corps of mediators which still appears to be unique in Europe.

This makes it all the more surprising that so few UK universities enter the competition. Sheffield Trent have competed a number of times and indeed on one occasion won it. But they did not appear this year. I was privileged to conduct a mediation with Great Britain’s sole representative, the University of Hertfordshire. Very good they were too but they must have been puzzled to find themselves carrying the flag alone.

Maybe the other competitions attract the attention of UK universities. BPP and Strathclyde have long-standing involvements with the INADR competition that is normally run out of Chicago. There the students act as mediators as well as role-playing the parties. Rumour has it UCL are involved in the inaugural running of a Vis mediation moot to be held this year in Vienna.

The value of mooting for law students is well recognised. From my standpoint the competition is a huge learning opportunity for the students who visibly improve between rounds and there is a real buzz in the room when two teams who “get it” come together.

What are they learning? I think the competition sets them two targets. First they must learn to negotiate by opening up as wide a range of options as possible. Both in content and in atmosphere they are encouraged to move away form the narrow legal dispute to a wider understanding of their own and the other parties interests. The second and connected objective is that they should learn how to use the third person in the room, the mediator, to facilitate that kind of discussion.

Correspondingly for all of us who mediate the competition is a chance to explore what we do and try to answer the question “what, if anything, does our presence in a negotiation contribute?” Above all, how can we contribute more?

I conducted my last mediation of this year’s competition high above Place Vendome between teams from Wellington, New Zealand and São Paulo, Brazil. They were arguing about a defective jet engine. Two judges (Germany and Switzerland) presided and took notes. There was an extraordinary sense of excitement in the room. It is a tribute to the two teams that it felt just like the real thing.

As we shake hands and congratulate each other, I idly speculate as to how long it will before these fine young people will be allowed out of the mines of the law to enjoy the sunshine of a real mediation.

Not too long I hope.

Bill Wood: a nightmare returns

paperstackIn common with many other advocates I used to have a recurring nightmare in which I walked into a court and was expected to address the judge while knowing absolutely nothing about the case.[1]

One night last week, after an interval of several years, the nightmare returned. I was apparently instructed to bring a claim against the makers of a well-known luxury car brand.

They for their part, unfairly as it seemed to me, had instructed the legendary Barcelona striker Lionel Messi to represent them. (He had added silk to his numerous other trophies). In the event the hearing went surprisingly well. So well indeed that we seemed to be moving on to quantum issues when I woke up.

But I digress.

The question is: why has the nightmare returned?

The best I can come up with is that it reflects the increasing tendency of parties (or rather their lawyers) to demand from me as the mediator more engagement with and more technical analysis of the legal issues.

Bluntly I’m being put on the spot. Recently two parties amended my mediation agreement to require me (the usual wording merely “permits” me) to express my views on the merits of their respective positions at the end of the mediation day if the case had not otherwise settled.

The case didn’t settle. Frank appraisals took place. As far as I could tell I left the building cordially disliked by both sides. But the following day both parties told me that the assessments had been a good platform for my continued attempts to settle the case.

The process continues. We shall see.Continue Reading