Smooth as a silk
8 April 2002
For most litigators, mediation is at best a useful tool in the dispute resolution process and at worst an irritant to be avoided if at all possible. Even with the courts' recent declarations of intent to encourage mediation - sometimes forcefully - there are few litigators who would consider giving up a highly successful and profitable practice to embark on a new career as a full-time mediator.
After all, the number of mediations - notwithstanding the recent decisions in Cowl and Railtrack - appears to have reached a plateau; there is continuing scepticism over its potential in numerable situations and a fairly widespread perception that the whole process is open to serious abuse by wily, cynical litigators. Not to mention the considerable drop in earnings such a move would necessitate, at least in the short term.
But that is exactly what Presiley Baxendale QC, joint head of Blackstone Chambers, has done in forsaking an established reputation as a leading public law silk for the rigours of carving out a new career as a mediator.
"The more you come into contact with [mediation], the more evangelical you become," she says simply.
After gaining Centre for Effective Dispute Resolution (Cedr) accreditation in 2000, Baxendale completed her first mediation as an assistant mediator in 2001 and quickly became convinced that a radical change of direction was necessary.
"It was just so quick, so efficient and so sensible," she recalls. "After about two or three I decided to stop litigation. I can't imagine you can do both because the cases I've been involved in are very long-running and very time-intensive, so there'd be no opportunity to develop mediation."
Baxendale holds no truck with those cynical litigators who believe that mediation does not offer a means to an end in itself, but is merely a useful method of exploring the strength of your opponent's case.
"You need to be quite determined as a mediator. The cynical view of using mediation to cross-examine should be stopped by the mediator," she says. "If it does happen, it's the fault of the mediator."
The difficulty for Baxendale and those barristers who, like her, are seeking to carve out a career as a mediator is compounded by those who question an advocate's compatibility - given their proclivity for the courtroom battle - with the role.
"I believe that for a mediator to be successful, he or she has to be quite determined, not aggressive," states Baxendale. "But I don't think successful barristers need to be aggressive either. What mediators have to be good at is getting their own way and being able to adapt - very similar skills to those needed as a barrister."
But Baxendale is not by any means an aggressive litigator. She is persuasive rather than bullish (her first job was selling cars in Colombia, a task she performed without being able to speak Spanish), and it is easy to see both why she is drawn to mediation and why she is already developing a solid reputation as a mediator.
After all, how many barristers do you know that take along a packet of biscuits to the courtroom?
"I always take chocolate digestives with me," she admits. "The most important thing is that the parties aren't hungry. It's up to the mediator to make sure the atmosphere is right."
Baxendale's biscuits are particularly important for her participation in the Central London County Court mediation scheme. This has been running for a number of years and is essentially a pro bono initiative. If the court and the parties agree that their case is suitable for mediation, then the court is kept open between 4.30pm and 7.30pm, and Cedr supplies a mediator who is paid just £125. Baxendale has now done seven herself and believes they can be invaluable.
Blackstone, however, is a business and Baxendale must still pay her chambers' expenses. When you look at it that way, it becomes clearer why so many clerks are reluctant for their barristers to pursue mediation. A typical attitude from a clerk would be, 'I can't sell a barrister into battle because they've got a reputation for being cuddly and settling things.'
Baxendale's rational argument, though, is that in commercial disputes the parties often do not want to sever their relationship and would rather continue in business together. Mediation, she argues, is the best forum to achieve that end.
Nevertheless, Blackstone's senior clerk Martin Smith also needed some convincing, which is perhaps not surprising given the whole biscuits thing, but he now believes, as does Baxendale, that there is a market to be exploited.
"I don't understand why the bar hasn't pursued mediation more vigorously. It was the same with human rights in the context of commercial law," says Baxendale. "We were at the forefront of human rights and hope that it will be the same for mediation and anticipate that more members will become accredited."
Currently, only Baxendale and fellow joint head Charles Flint QC are fully-fledged mediators, and Flint continues to practise as an advocate.
Blackstone's current success and its elevation from a run-of-the-mill set to a leading player is certainly largely as a result of its ability to trade on its dual strengths in commercial and public law. Baxendale believes that mediation is another integral part of chambers' practice.
She might just be right. The courts are clearly pushing for potential litigants to pursue mediation wherever possible, and although it remains a voluntary code, the decisions in Cowl and Railtrack indicate that there are varying degrees of 'voluntary'.
The bar is also obliged to seek out new markets, given the continuing drop in traditional commercial litigation and the growing unwillingness of law firms' litigation departments to farm work out to the bar.
More encouraging news for keen mediators is the Government Pledge, made in March last year. This stated that the Government will use alternative dispute resolution (ADR) in all suitable cases, not just in litigation but - with certain exceptions - to write it into public procurement contracts and regulations. Baxendale also reports that there is an increasing emphasis, led by the Treasury Solicitor, for Government lawyers to use ADR and mediation in particular.
As for Baxendale herself, progress is more than satisfactory. Clients from her former life are starting to recognise that she will not be pressured into returning to the bear pit of courtroom litigation, basically because she does not miss it. "I'm still in chambers and I still get the same kind of adrenalin," she says.
All very well, you might say, but what about the money? "I aspire to be a successful mediator and believe that you can still earn a lot of money in the end," she replies.
Given the attitude of the UK's court and our traditional temptation to follow the lead set by the US, which is light years ahead in its approach to mediation, her prospects are good. The clerks will just have to be patient for a little longer.