Mediators offer little value
13 March 2000
Marion Simmons QC argues that lawyers possess the skills necessary to have a structured discussion between themselves, their client and the other parties without requiring the intervention of a mediator to reach a compromise. Marion Simmons QC practises at 3/4 South Square.
Is a decision by a judge always the best way to resolve a dispute? The judges do not think so. Some of them are promoting alternative dispute resolution.
In a recent case, Lord Justice Walker expressed his wish that the parties reach an acceptable compromise by ADR, rather than taking the claim to trial, which would create a real danger that the whole estate would be spent in litigation.
A lawyer specialising in dispute resolution should not only be working towards a resolution by judicial decision but should also be considering whether the dispute can be successfully compromised at an earlier stage.
From the first meeting with the client, a lawyer should consider and advise on compromise and should assess how best to achieve an appropriate settlement for the client as well as how best to position the client for a successful outcome in court. The two are not mutually exclusive.
Compromise is achieved by discussion and negotiation. Although great play has been made about the merits of mediation, it is only one form of ADR and is not necessarily the best way of settling a dispute.
Mediation certainly allows a client to tell his story. But surely the client has already told the story to his lawyers and does the client need to incur the additional expense of rehearsing it to a mediator?
During mediation, the client may tell the mediator an important piece of information which he has not revealed to his lawyer. But what justification does the client have for trusting the mediator but not trusting his own lawyer, who in any event will hear the disclosure during the mediation process? Is it because the client does not understand the role his lawyer can play in settlement? Or is it because the mediator is more attune to extracting information from the client than a lawyer? If so, why is this?
Mediation brings parties in dispute together. However, this is not brought about by the mediator but by the desire of the parties. Either the parties wish to meet or they do not. The mediator facilitates the meeting, but the lawyers could equally achieve this. Indeed, it could become part of the accepted pattern of litigation.
Part of a mediator's role is to conduct a risk analysis with the parties. Does it require an independent third party to facilitate a consideration by each party of the strengths and weaknesses of their position and that of the other parties? Surely lawyers should carry out this exercise and explain it to their client. Lawyers cannot properly prepare the case or give appropriate advice to their client if this analysis has not taken place. The mediator's involvement in this exercise should be superfluous.
The mediator acts as chairman, providing a structure and format to the negotiation process. Lawyers should have the skills to be able to facilitate a structured discussion between themselves, their client and the other parties without requiring the intervention of a third party. Negotiations without mediators take place regularly in the commercial world and also have achieved compromises in litigation matters. Why should this not be the norm?
It is argued that the parties can trust the mediator. But each party should be able to trust their own lawyers. How can all the parties in a dispute put their trust in one third party and disclose to him matters which they consider to be confidential and which they are not prepared to have disclosed to the other parties? In any other situation that third party would be said to have a conflict of interest and would need to disqualify himself.
It is also argued that the presence of a mediator changes the dynamics between the parties and that because a mediator achieves compromise he is worth paying for.
But what does the mediator do that the parties together with their lawyers are unable to do?
With the exception of family mediation, the mediator normally talks to each party separately and confidentially. The mediator does not normally disclose to the parties his own opinions as to the likely legal result of the case. Nor does the mediator disclose how he perceives a court will analyse the evidence or even his own impressions of the evidence which the parties have revealed to him.
Nor does he necessarily disclose to party B what party A has told him, even though in formulating questions to party B it is difficult to see how he is not conditioned by what has been told to him by party A. This means that party B may be given no opportunity to correct what party A has said.
The two parties and the mediator may be proceeding under serious misapprehensions as to what each of them understands about what actually happened and may be ignorant of the impressions which each have formed in their own minds. But in the spirit of mediation these breaches of natural justice can apparently be ignored with impunity.
Mediators recount stories that although no settlement was achieved at the mediation, negotiations continued between the parties and their lawyers and the case settled within a few days or weeks of the mediation taking place. The mediation may have been the catalyst to negotiation, but settlement in these cases has been achieved by the lawyers and the parties, not by the mediator.
They also recount stories about how the compromise was achieved in the late hours of the night or early hours of the morning. Is there some similarities between the pressures which have caused the parties to compromise in these circumstances and the pressures which result in confessions being made to the police? Is it acceptable for such pressures to exist in achieving a compromise but not when a confession is extracted in similar circumstances?
If there is such antagonism between the parties that they cannot face each other around the table except in the presence of a referee, how is it that they are prepared to place complete trust in a third party who may not be told the full facts and who may not disclose to everyone what he is told about the case?
A mediator may be the only means of achieving a compromise where the relationship between the parties and lawyers has broken down. But if compromise is one of the objectives of a litigator should the relationship be permitted to break down?
Compromise is, of course, preferable to the trial process. The trial process does not determine the truth - it can only provide a decision on a balance of probabilities.
The new regime under the Civil Procedure Rules encourages lawyers to consider an outcome arrived at by compromise as well as one arrived at by the trial process.
If a round the table discussion attended by the parties and their lawyers might achieve a compromise, the costs of the mediator can be avoided, the negotiations can be conducted without fear that the compromise has been achieved because the mediator laboured under a misunderstanding of an important fact, circumstance or relevant point of law (which possibly had been disclosed by him to one party but which had not been discussed between him and the other parties) or because of some undue pressure.
If this cannot be achieved, the lawyers should ask why not. Is it because they are partisan or fear taking the responsibility, or is it because they have not acquired the negotiation skills which are one of the important functions of a litigation lawyer in the year 2000?
Only when such negotiations do not produce compromise should a client be advised to pay for a mediator.
If an independent mediator is to be suggested by the lawyer should the mediation process be explained fully to the client? The Human Rights Act 1998 does not apply to mediation voluntarily entered into by the parties. But when considering the mediation option the parties should understand that the courts operate within the bounds of natural justice but these rules may not be adhered to by a third party mediator or facilitator. If the parties do not understand this, are they voluntarily agreeing to mediation?
The convention right enshrined in Article 6 of the European Convention on Human Rights states that in the determination of civil rights and obligations everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law.
The judge presides over the trial in accordance with fairness and natural justice, but the mediator is not constrained by these basic principles. Can a party waive his rights to a fair hearing if he is not told that the alternative course may not be conducted in accordance with natural justice? Should this difference be explained by the lawyer to his client before the client is asked to consider a mediation?
If the courts are to suggest mediation to the parties should the court ensure that the process is fully explained to the parties? If it does not, might it be suggested that the court has acted in a way incompatible with a convention right?