Last week, coinciding with the 41st anniversary of the death of John Lennon and the week that I started to watch 'Get Back', the wonderful Disney+ documentary about The Beatles, Marialuisa Taddia, supported by others including officers of the Civil Mediation Council, wrote a very powerful article in The Law Society Gazette entitled 'We can Work it Out' about the growing value to society of mediation and some of the opportunities and challenges it faces. The Beatles link may be a coincidence. The Frankie Goes to Hollywood references below only came to me as I was writing (the Liverpool music scene is pretty amazing).
As a mediator my job is to help parties in dispute 'to work it out' and one of the most common questions I am asked by a party reluctant to take part is 'What do you see as the main value of mediation?'
My answer is always longer than the questioner expects, because mediation adds so much value it is difficult to choose one value over others. I limit my responses to the Eleven Added Values of Mediation. It is not an exhaustive list though, feel free to add your own!
1. Time. No, I am not going to harp on about Doctor Who again (though you can read my blog here about how having a TARDIS would be pretty cool for any mediator). Mediation is more time effective than other forms of dispute resolution. If you ask me today when I can mediate I can come back to you with a number of dates in the next week or two. Not only does that mean that a date can be set quickly, but, as reported in The Law Society Gazette, with an average of 72% of cases settling on the day of the mediation itself*, the whole dispute can be resolved far more quickly than at litigation or arbitration. [*My average is nearer to 90%. Just saying...]
2. Money money money. No, nothing to do with ABBA. Mediation can save costs - AKA time (again) is money. My fees for mediation are very competitive and often a drop in the ocean compared to the amount in dispute. Say for example my fees for a full day commercial mediation are £2,275 plus VAT (usually shared by the parties). My last mediation was over a dispute of £40,000. So my fees came to just over 5% of the amount in dispute. But this is nothing compared to legal fees and other, some intangible, costs. Between them the parties had paid £10,000 in legal fees by the time the mediation took place and estimated costs for trial were near to £35,000. So by engaging me as mediator the parties saved at least £35,000 on legal fees, on top of having an outcome that they themselves had agreed, not one foisted upon them by a judge. They also saved operational and opportunity costs, because instead of a trial lasting up to a week, they mediated in one day.
3. "I'll protect you from the hooded claw..." (Frankie Goes to Hollywood). Mediation can protect against the hooded claw of legal fees. There is so much case law now setting out why parties are expected to try and mediate before going through litigation. You would be strongly advised to check this out and take advice if you were thinking of declining an offer to mediate. My colleague Robin Somerville recently wrote a blog for Hunt ADR setting out some of the most relevant cases. You can read that here. Alternatively you can watch Hunt ADR Mediator, Rob Langley, as he sets out caselaw relevant to mediation in an E-Learning module (CPD points!).
4. That mediation is confidential is possibly the most important value of all. Everything said or done at mediation is confidential and cannot be shared outside of those parties who have signed the mediation agreement. This includes the mediator and possibly the mediation service provider who has the mediation up. This creates an environment in which everyone can say and do whatever they want (within reason) and negotiate in safety.
5. Mediation lets you keep your pride, but it is without prejudice. Without prejudice extends to any offers that have been made, whether accepted or rejected, counter offers, concessions, ideas for future projects and work, inventions, innovations - none of this can be repeated at court if the case doesn't settle. If it was generated as part of the mediation and raised at court then it will be disregarded by the court.
6. Mediation addresses power imbalances between the parties. It is not unusual to mediate cases where Party A is a large national or international company and Party B is an SME or sole trader. The mediation process manages the power imbalance not least by allowing parties the opportunity to have private sessions with the mediator without the other side being present. A well trained mediator can easily spot any imbalances in power and help by managing the process effectively.
7. Show me the money! Mediation can help two businesses in dispute to survive where cash flow is an issue. By mediating an agreed payment plan one party makes sure that it gets paid what it is owed whilst the other makes sure that any payments it is due to make can be met without putting it under additional financial risk.
8. Relationship management. Mediation can repair and rebuild important business (and personal) relationships. I have to say one of the most satisfying outcomes I see as a mediator is where there have been two businesses which rely on each other who have fallen out but mediation has allowed them to repair the relationship. Sometimes it goes further, out of a repaired relationship comes additional work, more contracts and innovation. This is my number one value of mediation and I like nothing more than to have mediated cases where relationships are mended, the dispute is resolved and more business is generated from it. That feels like a fantastic days work and added value to the parties.
9. Control. Mediation is the parties final chance to exert control on the outcome before handing over the dispute to a third party decision maker. More and more I find this is the key to settlement, the moment that a party realises that if they do not do it today then they are going to lose control and someone else is going to decide what they are going to do - whether they like it or not. It's also where you start to lose control of costs.
10. Back to Frankie Goes to Hollywood, mediation allows you to "Purge the Soul", to unleash your worries and concerns to an independent third party with the comfort of knowing it is confidential and without prejudice. People often underestimate the value of being able to unload your baggage on a mediator. It is vital and it doesn't matter if you are a CEO of a huge business or a sole trader, having the opportunity to speak freely to someone who isn't going to judge you is of significant value and is often the first step to resolution.
11. I've left this one till last as it could change in 2022. At the moment mediation is voluntary. It is voluntary to take part and it is voluntary to stay there and continue to participate once it has begun. This could all change in 2022 and I have not yet made my mind up completely about whether removing the voluntary nature of mediation and making it compulsory is more of a curse. In 'We can work it out' , Hunt ADR mediator Roger Levitt says:
…compulsory mediation is on the horizon...The courts just can’t cope with the number of cases coming before them so they are trying to make sure that as many cases as possible go to mediation...
Roger adds that he is seeing
...a much greater percentage of cases that go to mediation before issue, and then after issue the judges are being much more forthright in their direction for people to mediate.
I'm going to see how this develops a little further before choosing sides. My initial thought is it could be just what mediation has been waiting for, but that is tempered by a fear that it will devalue the process and put those of us who have been working to make it mainstream for years in a worse position than we are now, I have reasons for those fears, but they are for 'Another Day'.
We Can Work it Out | The Beatles | Lennon & McCartney
The Power of Love | Frankie Goes to Hollywood | Johnson, O'Toole, Nash & Gill
Another Day | Sir Paul McCartney