In Defence of (Defensive) Mediators

Ask most mediators of a certain stripe and they will be only too willing to tell you the story of long ago when they left their law firm or maybe even chambers to become a mediator…. that giant leap of faith, that alarming drop in revenue.

Some will have run away from practice only to later stumble over mediation. Others will have run, arms outstretched in an embrace, towards mediation. And it usually shows in the sort of mediator they become in the years that follow.

But all mediators of this genre have a certain sensitivity in common.

So it was well into the afternoon of a mediation this past week, one of the lawyers who I had last seen when I was at my firm in the 1990’s said to me; ‘So Geoff, when did you give up real law?’

At this point, two answers are possible.

One for a valued and hopefully future consumer of my mediation services; ‘Ha! Spot on Brian – I haven’t opened a law book since 1998’.

But it was the other, giving life to that sensitivity all these years later, that sprang from my lips;

Well, you know Brian, there’s a lot of paddling under the water for us mediators. I have to be able to understand, very quickly, how you twist your square causation argument into the round hole of the law – and test you on it without, of course, putting you on the spot.

Before I can do that though, I need to actually know the law and have a good eye for legal BS so I can ask you, in the nicest possible way, to explain it to me again so others at the table just might pick up the soft spots I got, but they missed, on your first run through.

Sorry Brian, but it felt good.

Sophisticated Mediation Advocacy : “Out Loud Adverse Advice”

When I am mediating I often encourage counsel ‘to be brave’.

Easier said than done I know, but bravery can take many forms in mediation.

From counsel backing their own advice when the easier road would be to settle – to something a little more counter intuitive and possibly risky – like strategically signaling vulnerability at the table, often achieved by counsel giving the client out loud adverse advice during a joint session.

Yeah, opposite counsel may be right I guess – we will struggle if that’s the way the judge approaches liability on this aspect – and by the way, we are the wrong side of 60/40 odds. But once/if we get through that, quantum is downhill with a minimum of 1m and on a good day 1.95m – their risk that we get to try quantum is unacceptable and (as counsel turns back across the table) we know you can’t live with that for 15 months until trial

What’s going on here?

Well, good mediation advocates know they don’t have to prove their position is the correct one – their task is fundamentally different at mediation – instead they are asking themselves what can I do to move this case towards settlement?

I have heard it said that all you need to bring to mediation is a big stick – errant nonsense of course and ironically, I have seen some very small sticks, aimed very carefully, obliterate their target.

So, good advocates don’t waste energy debating the legals up hill and down dale – rather, just enough back and forth to condition the debate and create doubt (and therefore risk) for the other side – and if they’re really, really good, by using front-foot concepts like preemptive disclosure and inoculation.

Inoculation is an especially intriguing notion and again belongs to next level of mediation advocacy but, other than what appears below, will have to wait for a future post.

Good counsel reason that voluntary disclosure of negative information removes the sting of negativity and divests the other side of the opportunity to expose and capitalise on it.

I delight in seeing brave mediation advocates making carefully considered concessions on points that do not directly undermine their ultimate goal –  which, in the right hands, is an extremely effective mediation posture. And that’s not to say they would do the same thing at trial – that’s the point, mediation advocacy is so very different.

But great caution is needed – there is an art to this high-wire act and it’s best to read this before you try it at the table; Playing With Fire: The Science of Confronting Adverse Material in Legal Advocacy (Prof Kathryn Stanchi, Temple University – James E. Beasley School of Law).

… it is not surprising that there is considerable controversy among both appellate practitioners and trial lawyers regarding when and how to address information that potentially undermines the position they are advocating. The vehemence of the disagreement among lawyers about the appropriate strategy, as well as the pain of the dilemma, is a testament to the high stakes of the question.

The theory of inoculation is based on the idea that advocates can make the recipient of a persuasive message “resistant” to opposing arguments, much like a vaccination makes a patient resistant to disease… inoculation studies show that raising and refuting adverse information works better than a wholly positive message to insulate message recipients from later attacks on the message… the theory is that introducing a “small dose” of a message contrary to the persuader’s position makes the message recipient immune to attacks from the opposing side.

The key to inoculation is the warning of the impending attack, or “threat”, combined with the refutation of the attack. Refutation alone is not sufficient to produce the inoculation response. The two components work in tandem – for the inoculation response to occur, challenges must be explicitly raised and then answered.

Remember you heard it here at BCC first: “out loud adverse advice”

Read the full article in which Prof Stanchi explains a range of fascinating concepts like bad law, bad facts, stealing thunder, preemptive disclosure and inoculation theory – all useful to the advanced mediation advocate.

A New Seat at the Mediation Table? The Impact of Third-Party Funding on the Mediation Process (Part 2)

This is the second in a series of two posts about third party funding (TPF) of litigation

Geoff’s Part 1 looked at the principle of third party funding. Now Bill Marsh at Independent Mediators and Geoff Sharp of Brick Court get together to share thoughts on the impact TPF has on the mediation processsnip_20170310132157

Whatever else mediation is, it is certainly a forum in which the parties have the chance to make decisions about how to resolve their dispute or conflict. Often difficult decisions. And so the factors that motivate those decisions are crucial to their choices.

In simple terms, this is often a question of carrot and stick, pros and cons.

In our experience, parties in mediation are constantly weighing the upsides and downsides of a given settlement proposal. Part of their consideration is the financial cost of losing – not just any damages, but the costs consequences as well. In many jurisdictions (including ours – England and New Zealand) the loser at trial pays (the bulk of) the winner’s legal costs, and so that cost forms an important part of considering ‘what happens if we actually lose our case?’

Traditionally, a litigating party bears both the upside and the downside risk. If they win, they receive. If they lose, they pay. But TPF radically changes this. And therefore changes the whole consideration of risk. For example, a funded claimant can win the case (and sure, they have to share the winnings with a funder); but if they lose, someone else will pay the costs. In fact, the funder has paid the costs and there is no recourse. So, they feel that they have an upside without a downside – a ‘free run’ at the case.

And for most people, that changes everything;

More Confident Claimants

Funded claimants appear more confident in settlement negotiations, because as we say, they consider they face an upside but no downside. They have managed to secure a safety net. The main question in their mind is the size of that upside!

Another Brain

A fresh perspective is one of the more important impacts on the mediation process – funders will naturally scrutinise a case before agreeing to fund it undertaking quite sophisticated due diligence, and some may want a say in settlement decisions. That means that an additional legal mind has assessed the case, at least at the outset, and no doubt at key stages along the way as well.

In practice, funders will sometimes be present at the mediation. Given the nature of their involvement, they can add a wise head and tend to act as a useful check and balance on the funded party.

The Mere Threat of Funding

Allied to there being another brain in the mix, the mere fact that a claimant has been able to secure funding – can sometimes, in and of itself, lead to mediation and /or settlement.

As James Rogers, a Norton Rose Fulbright arbitration partner says;

I was involved in a somewhat unusual +5 year case where the threat of funding led dramatically to settlement… We eventually had four arbitration awards in hand that we were getting ready to enforce and we were preparing another round of claims… The threat of funding confirmed our client’s persistence and, within a month confirming that we had engaged funders, the Chinese party agreed to settle. It was a very powerful tool.

And that is perhaps why some claimants are sometimes happy to volunteer the existence (and sometimes details) of their funding to the other side, as it can send a very strong message about the merits of the claim and the wisdom of settling now rather than later as the escalating scale of payments to the funder ramps up the closer to trial it gets.

As a mediator, Geoff was recently asked to examine a party’s funding agreement and, while they were not prepared to show it to the other side, he was asked to confirm that a funding agreement was in place together with some of the more salient details that, strategically, the claimant wanted the defendant to know about.

A More Dispassionate View

Funders will often approach settlement discussions much more dispassionately than the parties themselves.

Their concern – understandably – is less with the underlying issues that generated the dispute in the first place (after all, they weren’t even there) and more with the risk analysis that underpins settlement discussions.

Steven Friel, CEO at Woodsford Litigation Funding says;

As a funder, our main concern is in achieving a financial return. If a claimant wants something else, for example vindication on some point of principle, then this introduces the prospect that the claimant’s interest will not always be aligned with our interest. We approach such cases with caution.

Put simply, funders are normally focused on the numbers. This can of course be very valuable.   But it can occasionally run the risk of steering the mediation discussions away from a perhaps more personal exchange of views when the parties themselves may need these to get to a money settlement.

Neither focus need be to the exclusion of the other, but the balance is worth thinking about if you are a mediator.

Funders in the Mediation Room

Mediators report that they are seeing funders at the mediation table, and that this sets up an interesting dynamic. Having a repeat user brain with a dispassionate view on mediation day can be invaluable – especially if the funders and the funded interests are aligned as they should be.

So, if funders do attend mediation, what role do they typically play at the table… silent observer, active participant, agent of reality?

Ruth Stackpool-Moore, Director of Litigation Funding at Harbour Litigation Funding says;

Although rare, if and when we attend mediations, our role is generally one of silent observer. The indirect effect of our presence may be the same as our involvement in the case generally, in that the other side feels the weight of our experience and may be more constrained in trying to “pull the wool” over the claimants eyes. What we wish to avoid is that our presence diverts the other side’s attention from settlement, which would be counter-productive for all involved.

Whose Case is it Anyway?

Exactly who calls the shots, whether to take the case to mediation in the first place or a decision around what level of settlement is appropriate, can be a contentious issue.

There is a concern in some quarters that funders will gradually progress from funding, to controlling, to hands on – which would not be a lot different from a law firm on a contingency fee and lawyers do worry about the degree of control a funder might have.

Indeed, in a 2016 litigation finance survey of over 400 litigators by US litigation funder, Lake Whillans , it was the economic terms of any arrangement that were of most importance to respondents when choosing a funder and a close second came a funder’s right to influence or decide strategy or settlement.

But the funders we spoke to don’t seek drop-dead control – quite the opposite in fact, as Ruth Stackpool-Moore at Harbour explains;

The decision on the appropriateness or otherwise of mediation is one for the claimant and their legal team. At Harbour, we do not control how the claimant and their legal team deal with the dispute. In our experience, mediation employed at strategically sensible stages of a dispute can be a very effective way to reach settlement or narrow the issues which remain in dispute, thereby often reducing the uncertainties and cost of the proceedings.

Consistent with that, Steven Friel at Woodsford;

Ultimately, we don’t decide. The decision whether or not to mediate a case, much like any other important step in the cases we fund, rests with the litigant and their lawyers. Of course, we have input into the decision, and it may be the case that we have the option whether or not to extend our funding to cover the mediation.

When providing our input, and when deciding whether to extend funding to cover mediation, the factors we take into account are exactly the same factors that any reasonable litigant should take into account. In other words, is the mediation reasonably likely to lead to settlement, or otherwise narrow the issues in dispute?

At Woodsford, we are staffed largely by English lawyers, trained in a post-Woolf approach to alternative dispute resolution, so we are relatively open to mediation.

It would seem to us when there is a prospect of settling the dispute, there is perhaps more chance of a tussle over control. Selvyn Seidel of US funder Fulbrook Management acknowledges that a funder “may not have a lot to say over a settlement – we don’t want to make the decision but we have to be able to voice our opinion”.

Again, funders appear to have a fairly consistent approach, with Steven Friel reporting that;

Ultimate control rests with the claimant and the claimant’s lawyers. We have the right to provide input, but we don’t necessarily have veto rights. Ultimately, however, my objective as a commercial funder is to ensure that I choose and cultivate the relationships with my claimants in such a way that I rely on cooperation, rather than strict contractual rights, when advancing my position in relation to settlement

Consistent with all of this is the voluntary code of the Association of Third Party Funders (England and Wales) that requires a funder “not seek to influence the Funded Party’s solicitor or barrister to cede control or conduct of the dispute to the Funder” and requires the Litigation Funding Agreement to state whether (and if so how) the funder may provide input into decisions around settlement. The guiding principle being that a lawyer should exercise independent professional judgement and give candid advice regardless of the involvement of a funder.

If there is a dispute the Code requires it to be referred to a Queen’s Counsel instructed jointly or nominated by the Bar Council for a binding opinion.

In a very useful e-book by Steven Friel and Jonathan Barnes Litigation Funding 2017 we are taken on a world tour of third-party funding jurisdictions. Of interest, in the context of this post, are questions around funder’s ability to participate in the settlement process (e.g. mediation) and to veto settlement.

While there appear small regional differences, in most jurisdictions it is perfectly acceptable that funders participate in settlement proceedings, including attending mediation and the good reasons why they should do so are acknowledged.

If there is a veto power in respect of settlement, that would normally be found in the funding agreement and in some jurisdictions it seems it is common practice to include it (for instance, Switzerland and Germany).

In New Zealand the existence of a funder’s veto was tested in the courts and a fairly liberal approach was taken in Strathboss Kiwifruit v Attorney-General where the defendant (the Crown) was concerned at the funder’s power of veto in relation to settlement.

The NZ High Court was not persuaded;

In this case, it was argued that too much control vested with the funder… The Crown was also concerned at the funder’s effective power of veto in relation to settlement of the proceedings…

I am not persuaded that the terms of the deed with the funder in this case are necessarily inappropriate for a representative action of this type. There is likely to be a range of views as to what would constitute an acceptable settlement, or the circumstances in which the plaintiffs may be better advised to explore alternatives for bringing the claims to an end. As between the claimants, the committee representing them will have to strive for consensus, and on major issues will no doubt be cognisant of the attitude of the funder. In most scenarios, I accept Mr Dunning’s point that the claimants and the funder should continue to have aligned interests…

The funder will therefore need to maintain their goodwill to carry on with the action. That goodwill would be in jeopardy if the funder wanted to continue when the claimants considered an acceptable settlement was available…

More importantly, the mechanisms for resolving major disputes contemplate the involvement of independent third parties with appropriate expertise. Reputationally, if in no other respect, that will provide a fetter on the funder’s ability to act unreasonably.

But control can be exercised in the number of ways and the ability to walk away can give a funder de facto control over the way a case is conducted – while it is hard to generalise, in one of the very few examples of a Litigation Funding Agreement we could find online (Roland Prozess Finanz AG), any agreement reached by mediation required Roland’s consent. In the event of the funded and funder failing to agree on a settlement proposal, the agreement could be terminated – with the party refusing settlement paying to the other the amount they would have been entitled to under the agreement if settlement had been reached – in the example agreement this meant a funded/funder split of 70/30 for any sum under 500,000 and an 80/20 split for sums exceeding that (and at mediation, a split of 80/20 applied).

But there is no doubt, the more uncertainty around who is the decision maker in the mediation room, the harder it is as a mediator to read the room.

Funders Stand in ‘Their’ Party’s Shoes

Following the English Court of Appeal’s recent decision in Excalibur Ventures v Texas Keystone, it is clear that funders (at least in England and Wales) cannot just fund the case and then stand back.

Conduct of the funded party will, at least in its consequences, be attributed to them even though, as we see above, funders may not want or have the ability to influence strategy.

In Excalibur the funder provided both litigation funding and security for the Defendant’s costs. The funded claimant, Excalibur Ventures, lost heavily at trial with the judge describing the claim as “speculative and opportunistic”. The Claimant (and hence the funder) was ordered to pay the Defendant’s costs on an indemnity basis, because of the Claimant’s – not the funder’s – conduct.

In response to their objections, Tomlinson LJ said: ‘The argument for the funders boiled down to the proposition that it is not appropriate to direct them to pay costs on the indemnity basis if they have themselves been guilty of no discreditable conduct or conduct which can be criticised.

“Even on the assumption that the funders were guilty of no conduct which can properly be criticised, and I accept that they did nothing discreditable in the sense of being morally reprehensible or even improper, this argument suffers from two fatal defects…”

“First, it overlooks that the conduct of the parties is but one factor to be taken into account in the overall evaluation. Second, it looks at the question from only one point of view, that of the funder…. It ignores the character of the action which the funder has funded and its effect on the defendants… A litigant may find himself liable to pay indemnity costs on account of the conduct of those whom he has chosen to engage – e.g. lawyers, or experts who may themselves have been chosen by the lawyers, or witnesses… The position of the funder is directly analogous”.

‘By funding, the funder takes a risk, a risk as to the nature of which he has the opportunity to inform himself both before offering funding and during the course of the litigation which he funds,’ he added.

Two Surprising Benefits
Early Settlement

Funding may change the timing dynamics – counterintuitively, it may make early settlement more attractive given that funding agreements often provide for a sliding payment scale – depending if the matter concludes early, middle or late in the journey towards trial. There will often be a lower percentage payable to a funder on any settlement in a mediation room compared to a win in the court or arbitration room – simply because the interplay between costs and risk changes the closer to adjudication the case gets.

Ruth Stackpool-Moore at Harbour again;

The certainty of a guaranteed return from settlement following a successful mediation is generally worth more to us than the uncertainty of what may, or may not, come through a judgment or award…

Better Informed Parties

Perhaps a surprising spin-off benefit from third-party funding is that there will inevitably be an increase in the number of better informed litigants, regardless of whether those parties actually receive funding – as Victoria Shannon Sahani from Washington and Lee University School of Law says over at the Kluwer Arbitration Blog; since funders fund only a small percentage of the cases they are asked to look at (may be less than 1% to around 5%) there are far more cases that are not funded then cases that are funded.

That means funders are providing “free” case assessments to the vast majority of parties they encounter, regardless of whether they decide to finance the case or not. Parties who are rejected and who receive a substantive explanation will be better informed to make a call on their future direction of travel.

As Victoria Shannon Sahani says “over time, an increase in the number of well-informed parties will have a very positive impact on our international system of dispute resolution”

Last Word

Mediations are often a heady cocktail of upsides, downsides and risk analysis.

In one sense, TPF changes nothing. But in another very real sense, it seats another stakeholder at the actual or metaphorical mediation table – and as all mediators know, that changes everything.

Find the Right Thread to Pull

Litigators discussing the wisdom of hiring an evaluative mediator at a recent ADR conference;

“It’s just too risky – we don’t want a mediator telling us anything, we can get a Judge to do that. What’s more it make s it harder to settle, not easier, if doubt goes out of the room”

When one of the huddle said “…hang on a minute – I’m not talking about a thumbs up/thumbs down kinda guy, I want someone who finds the right thread to pull so I can resist (so as to make my argument) or allow me an organised retreat if I choose, that’s what I mean by evaluative…’

A New Seat at the Mediation Table? The Impact of Third-Party Funding on the Mediation Process (Part 1)

In the first of a two-part article, Geoff Sharp looks at the development of third-party funding of litigation, arbitration and mediation in part 1 and later in part 2 we will look at how TPF impacts the mediation process

litigation-funding-image

Third party funding (TPF) of claims has been around for quite some time. Historically however, some jurisdictions have prohibited a stranger to a lawsuit financing the claim of another in return for a share of the spoils.

Over time that has changed as many jurisdictions overcome fears that litigation financing somehow perverts the course of justice – that a third-party funder “might be tempted, for his own personal gain, to inflame the damages, to suppress evidence or even suborn witnesses” (Lord Denning in the Trepca Mines Case 1963). 

Over the intervening years, concerns over access to justice have come to trump the very real risks of third-party funding and as a result many jurisdictions have relaxed notions of champerty and maintenance.

Just in the last fortnight the Court of Appeal (UK) confirmed that position in the long running Excalibur Ventures v Texas Keystone case saying “Third party funding is a feature of modern litigation” and that it is “an accepted and judicially sanctioned activity perceived to be in the public interest.”

So the tide has definitely turned and the last couple of years have seen a dramatic increase in the level of TPF generally, with most funding confined to lawsuits (i.e. those claims bought in the courts). However, we are now seeing a similar rise in levels of arbitration funding and in particular, the international commercial arbitration community appear to be embracing TPF with many jurisdictions like Singapore and Hong Kong responding with enabling legislation. 

These South East Asian jurisdictions are reforming to allow funded arbitration to ensure their continuing status as favoured dispute resolution hubs. On 7 November 2016 the Civil Law (Amendment) Bill was introduced in the Singaporean Parliament allowing for third-party funding of arbitration by early 2017 and Hong Kong is currently in a consultation process that will see a similar result.

With the rise of TPF in litigation and arbitration, it follows that funding of mediation is also on the increase, given that much mediation happens along side these two dispute processes and in the 2nd part of this article we will look at the consequences of TPF for the mediation process itself, in particular the dynamics of the mediation table itself, but first…

What is TPF and how does it work?

Well, at its most simple, it’s not complicated.

Although TPF products offered by third-party funders are now quite sophisticated, basically TPF is the funding of litigation or arbitration parties (usually claimants and increasingly class claimants) in return for a share of the proceeds. 

“Litigation funding is where a third party provides the financial resources to enable costly litigation or arbitration cases to proceed. The litigant obtains all or part of the financing to cover its legal costs from a private commercial litigation funder, who has no direct interest in the proceedings. In return, if the case is won, the funder receives an agreed share of the proceeds of the claim. If the case is unsuccessful, the funder loses its money and nothing is owed by the litigant” (Association of Third Party Funders – England and Wales)

On one view, TPF is simply another way to fund claims there having always been a number of ways to pay the costs of pursuing a claim in the courts or in arbitration – obviously, parties can simply fund their own costs, or equally, they may finance them by a loan from their bank or they may negotiate a fee structure with their lawyer (e.g. a no win, no fee contingency arrangement or a success fee conditional upon the result of the litigation).

Third-party funding however is different – a funded party will not normally have to pay any amount back to the third-party funder if the proceedings are unsuccessful. And these days it’s not only for financially distressed claimants who lack the ability to bring a claim.

As Ruth Stackpool-Moore, Director of Litigation Funding at Harbour Litigation Funding says, claimants approach her organisation with a request to fund for a variety of reasons ranging from hedging risk to not having a legal budget to fight the case.

To record the funding arrangement, the third-party funder and the funded party sign a Third-Party Funding Agreement covering the matters you would expect, including what and how the funder gets paid out of a money judgement or award, the degree of the funder’s control over the conduct of the proceedings, what happens if there is a disagreement (for instance, around settlement), the funders liability for things like adverse costs orders or security for costs etc. Such agreements are usually bespoke and very much depend on the individual circumstances.

TPF Issues

One of the issues currently exercising a number of jurisdictions is whether there should be greater regulation of the TPF industry to mitigate risk of abuse.

Some, like in England, favour self-regulation where funders subscribe to a voluntary code of conduct setting out capital adequacy requirements, ethical matters, limitation on the withdrawal of funding and what happens in the event of disagreement etc. A particularly important question is the funder’s level of control and ability to influence the conduct of a claim. There are competing views depending upon the jurisdiction – for instance ALF’s voluntary code takes a relatively conservative position requiring a funder “not seek to influence the Funded Party’s solicitor or barrister to cede control or conduct of the dispute to the Funder”.

The alternative view is that since a funder is putting up the money and has a stake in the outcome, important decisions like who to appoint as arbitrator or whether to settle at a particular level are quite properly a matter for funder input.

Jane Player of King & Spalding says “As an adviser I think funders are here to stay  and the good ones leave you alone to run the case and report  back at regular intervals on a risk assessment basis… I see [funders] as a positive influence as they often lend objective thinking to ultimate settlement offer discussions”

The reality is that there is usually little disagreement between the parties to a Third-Party Funding Agreement where it has been well drafted following a solid due diligence process and more importantly where there is effective communication between the parties who understand what is expected of each other.

Ruth Stackpool-Moore again; “When we do our due diligence we try to establish not only the legal merits of the claim, but also the realistic value and the realistic budget. We then agree the cost of funding based on the risks, the size and length of the case. Our pricing process – agreed upfront with the claimant – includes discussions regarding their settlement expectations. Our terms are clearly expressed in our funding agreement, so the claimant can calculate with ease how much they will owe us at all times“. 

Steven Friel, Chief Investment Officer at Woodsford Litigation Funding says;

“Ultimate control rests with the claimant and the claimant’s lawyers. We have the right to provide input, but we don’t necessarily have veto rights. Ultimately, however, my objective as a commercial funder is to ensure that I choose and cultivate the relationships with my claimants in such a way that I rely on cooperation, rather than strict contractual rights, when advancing my position in relation to settlement.

I am delighted to say that I have never found myself in dispute with one of my claimants in relation to settlement (or anything else, for that matter). If there is a dispute however, it is open to either party to refer it for expert determination”.

So, what kind of claims attract third-party funding?

Well, they are usually high value and often international.

There are varying reports of how strong a case must be before it will interest a third-party funder – some reports have that as low as 60% chance of success or as high as 85% – the Jackson Preliminary Report (2009) put it at around 70% for UK funders. Harbour Litigation Funding will fund a claim value greater than £10 million and the only cases unsuitable for funding are divorce and personal injury cases.

One thing is for sure, funders will normally undertake their own case assessment and only fund a very small proportion of the those offered to them.

 Steven Friel again;

“We will only fund meritorious claims, pursued by motivated claimants against solvent defendants, where costs are proportionate to the likely recovery, and where the governing law and jurisdiction afford relative certainty”.

In part two of this article Geoff Sharp will look at what factors are taken into account in deciding whether or not to take a funded case to mediation, how funders decide whether to attend on mediation day and what impact that has on the mediation dynamic, what role they do play if they do attend and the volume of funded cases actually going to mediation… and more

In the meantime, an excellent publication with a focus on contemporary issues in third-party funding of arbitration is Norton Rose Fulbright’s International Arbitration Report, issue 7, September 2016