01 — The status quo model

I’ve attended countless mediations as a barrister. They have often been expensive to prepare for and inefficient. The morning would usually be spent with both sides saying what strong cases they have and at most they might be willing to listen. It is pretty rare that anyone does. At 2pm one side might make an offer with just a tiny concession. By about 4.30pm the parties know if they are within touching distance. Sometimes they are and sometimes they aren’t. Lots of people seem to turn up without knowing their first or last offers. On a good day a deal might be done at 5pm and then the paperwork sorted out by 6pm. The whole thing would cost north of £40k.

If the mediation does not result in a deal - lots of them do not - then both sides have spent a lot of money and have just become frustrated.

02 — An efficient approach

I only deal with mediations involving professional liability claims and/or legal costs. I spend much of my day job as a barrister addressing these types of dispute. For many years the legal directories have rated me in these areas. I know all about the areas and issues which arise. This means that on the day there is an efficient and focused discussion.

My strong view is that aggressive and vague position papers, oral regurgitation of merits and a lack of focus on numbers is unhelpful.

The mediation process should be designed to be done at minimum cost and with an intense focus on negotiation not positioning. The mediator should know the area being disputed - it means that s/he can cut through verbiage and directly point out strengths and weaknesses and break logjams. I do coach about offers - where to pitch them and how to explain them. Mediate Efficiently is designed to achieve all this.

03 — Preparation

My diary and fees can be accessed here. So making a booking is easy.

Well drafted and concise position papers are excellent documents, but many pp’s are not. In the worst case they are just expensively prepared for one time use only and rarely add much new. So although I welcome and encourage useful position papers, I also think protocol correspondence, pleadings and a schedule of loss or a reasonably detailed case summary prepared for the Court can all be recycled and used instead. Whatever sets out the issues clearly, perhaps with a brief cover letter bringing things up to date. I find it helpful to see costs budgets, where they exist (even in draft form). Parties may wish to fill out a straight forward Information Questionnaire in advance to help me understand the issues.

This helps keep preparation costs down.

In advance of the mediation I also suggest the parties complete an Analysis Form (available in the Downloads section) to be kept by them but not sent to me or the otherside. The forms ask the parties to list their key strengths and weaknesses. Parties are asked to think about what happens if they do not settle and their best and worst realistic case at trial, the costs of getting there and the chance of each outcome. They are also asked to think about their first and last offers. These are not set in stone, but there is no point first thinking about numbers on the day. They then do this imagining they were in their opponent’s position.

This helps set the mind for a focused discussion and negotiation.

There is lots of information on this website about negotiation techniques, styles and considerations. If you are not an experienced negotiator or would like a refresh, it might be helpful. Click the Negotiation Knowhow page.

04 — The negotiation

I offer different types of mediation session. The traditional full day approach works for larger disputes, or those with more than 2 parties or cultural issues. Where the amount in dispute is less than about £100k, I encourage you to opt for a 4 hour time limited mediation. If grown up and sensible people with skilled advisers cannot work out if they are wiling to settle relatively low value disputes within that time, then something has gone wrong.

I like to have a good morning joint session, if only out of courtesy, and will then talk to parties privately about their strengths, weaknesses and alternatives to settlement.

If a party wants to make an offer which I think has no real chance of making progress then I will counsel against it. Sometimes, especially in prof neg cases, one side might be less experienced in the law than the other. If so then I help that side understand the principles and how it might apply to their case.

An advantage of mediation is that it is possible to negotiate and test offers without making a formal offer. I can test figures and approaches without giving things away.

If things are getting stuck I might recommend a different approach. Typically this might include blind bids - each side writes down three offers in sealed envelopes making greater concessions. I’ll open them progressively to see if they overlap or are within spitting distance. This way parties can make a “real bottom line” offer without giving anything away if it is not accepted.

Another common approach is to move to an evaluative style. There is a reason I specialise in professional liability and costs mediations. I am an expert in how they play out in Court and if the parties are split on how a Judge might resolve a point of principle, I can give my own view and break the impasse.

There are plenty of other techniques too. For more information on the different negotiation options read the Negotiation Knowhow page.

05 - Results

The goal and effect of this is two-fold: higher success rates and at lower cost. And I believe it works.

• By limiting position papers costs are kept down.

• By getting parties to prepare for a negotiation rather then positioning, everyone begins with a productive attitude.

• By going to a specialist in the field, an entrenched position can be quickly unwound.

• By keeping the process time limited and using a variety of techniques, there is a focus on coaching to settlement rather than a mere shuttle between entrenched parties.