Paul Lowenstein believes that mediation can offer both a time and cost-cutting alternative to litigation. Paul Lowenstein is a barrister at Littleton Chambers and a CEDR accredited mediator.
In a profession which is cautious at the best of times, the Chancery Bar has perhaps been the most innately reluctant to embrace new ideas.
It is not surprising, therefore, that on mentioning Alternative Dispute Resolution (ADR) to colleagues, responses such as: “What's that?” or “isn't it something to do with family work?” or even “I am trained to litigate, not to mediate”, are often received.
Like it or not, however, ADR is one of those ideas whose desirability, utility and plain economic sense are impossible to ignore.
Mediation will not replace litigation but it is a powerful adjunct or alternative to it. At a time when the current system of funding litigation is likely to be radically changed, it is thought that every barrister in civil practice will require, at the very least, a working understanding of the process of mediation. The Chancery Bar is no exception.
In the classic ADR model, the disputing parties will submit by agreement to ADR with a nominated mediator. The proceedings are entirely without prejudice. They differ from an arbitration in that the object is for the parties to reach their own compromise which can then be reduced to a binding document agreement. They offer advantages over attempted settlement by traditional positional bargaining in that the emphasis is on seeking a win-win solution as opposed to one of win-lose.
The mediator's role is something akin to a ring-master's.
Unlike an arbitrator, he will not rule on the disputes. He is there to facilitate the process, not to resolve the issues. It is usually the mediator who decides upon the particular procedure to be followed.
While the flexibility of the process allows for many permutations, the mediator will generally allow the parties to explain their opening positions to one another in a joint meeting before embarking on a series of fact-finding mini-meetings with each of the parties in separate rooms. In the privacy of these meetings, the mediator will be free to explore and test the reality of the positions being taken up by the parties.
This powerful process is an essential stepping-stone by which the skilful mediator seeks to divine the common ground. Since the process of ADR looks essentially to the future, the mediator searches for the points at which the parties' interests coincide and will be less concerned with the establishment of the parties' strict rights.
So what has any of this to do with the Chancery Bar? The answer is that the technique is ideally suited to a number of traditional and commercial areas of chancery practice. ADR can and has been used in areas such as banking, company and board room disputes, intellectual property, landlord and tenant, media and entertainment, real property, trusts, settlements and wills, tort and professional negligence.
As anyone who has been involved in such litigation will know, estranged partners can become deeply entrenched in costly and lengthy litigation. Good for the lawyers, a cynic might observe, but almost universally damaging to both parties' pockets.
By way of contrast, mediation has the potential to cut through the difficulties often encountered in disputes of this nature. The technique will often reduce both costs and delay by a very significant margin. It will normally produce a result which is more commercially desirable than might be imposed by a court which has a narrow and pre-defined set of remedies.
There are collateral benefits. The stumbling block to a negotiated compromise may be that the lay client is too deeply aggrieved to take a realistic or even a commercial view of his or her prospects.
A skilful mediator will recognise this and ensure that opportunities arise for the venting of such anger. It is not uncommon for this process to result in an apology or a recognition of distress to be tendered as part of the route to an ultimate settlement.
Other advantages of ADR for chancery practitioners is that it is possible to bring persons into the mediation process who have an acute interest in the dispute but who would, in litigation, remain outside the process. An example would be the case of a dispute over a conveyance of land which, if resolved contrary to the interests of the claimant, might lead to further litigation for example negligence against the solicitors who acted on their behalf at the time of the sale.
In such circumstances, the cost and delay entailed in two separate pieces of litigation might very well be avoided if the solicitors to the vendor and the purchaser were represented at the mediation.
While it is not suggested that ADR will entail the winding-up of the Chancery Division, mediation will be increasingly seen as a valuable and powerful technique, particularly in cases where funds for litigation are limited or where there is something valuable to be salvaged from the wreckage of dispute.