The origin of the term 'mediation' can be traced back to more than one source but what is uncontroversial is that it means "middle". The process involves an impartial and neutral third party, the mediator, who will facilitate settlement negotiations. Mediation provides an opportunity for the parties in dispute to work together, in a strictly confidential environment, to secure a resolution quickly and cost effectively. In this Q&A, Nikki Edwards, a partner in the Commercial Dispute Resolution team at Howard Kennedy, tells us about her experience of mediation and answers some common questions that can arise for the parties and their lawyers. Nikki works as a litigation lawyer, representing parties in court and at mediation and she also takes appointments as an independent mediator.
Congratulations on your recent nomination for the 'Mediation Advocate of the Year' award by the National mediation Awards! Can you tell us more about your career as a mediator and dispute resolution lawyer?
Thank you! I am thrilled to have been shortlisted. Whilst I have been taking appointments as a mediator for the last eight years, I have been representing parties at mediation for almost 20 years, so it feels especially nice to be recognised for my work in that role. Having seen mediation from both sides, the importance of having a skilled mediation advocate should not be underestimated.
I recall attending my first mediation as a trainee solicitor in 2005 and I was immediately persuaded that it was an important part of the civil justice process. Since then, I have acted for a whole range of clients, worldwide, ranging from owner managed businesses and individuals to PLCs, banks and insurance companies.
I have obtained victories for clients at trial in the Commercial Court and Chancery Division of the High Court as well as the Court of Appeal and have wide-ranging experience of dealing with injunctions and other interlocutory orders. However, my focus is always on getting the best outcome for clients, which often means resolving matters at an early stage, so that they have certainty and can focus on their business.
This focus on the 'resolution' side of dispute resolution is what lead me to formally train with CEDR and be accredited as a mediator in 2016. I now spend around 80% of my time working for clients as a lawyer and 20% as an independent mediator.
I firmly believe that my experience as a mediator makes me a better lawyer and my experience as a lawyer makes me a better mediator.
What are your top three reasons why parties to disputes should mediate?
#1 Why not?
I fundamentally believe that the stress and strain of a dispute has a massive impact on businesses and lives. The personal impact can be significant even in the most commercial disputes between big corporates, it is a huge drain on the time of those who are dealing with it internally and on the resources of the business. In smaller businesses or where individuals are involved, this strain will often also impact health and home life. If there is any possibility of resolving a dispute, why not try?
#2 Savings on legal costs
It may seem an unlikely thing for a lawyer to say but avoiding legal costs is a key reason to consider mediation. Whilst often unavoidable, the burden of litigation costs can be huge and in some cases, disproportionate to the amount in dispute. If there is an opportunity to attempt to limit those costs by reaching a negotiated resolution, I would always recommend exploring this. Clients may have not avoided the dispute, but mediation is a chance to avoid the costs that come along with a trial or arbitration.
#3 Ancillary benefits
Even if a mediation is not successful on the day, the preparation for it is a very productive exercise. If done properly, it involves a focused analysis of the key issues in the litigation and provides an insight into the opponent's strategy and what is important to them. It may involve an early exchange of key documents or an opportunity to hear from witnesses or experts. It also provides an opportunity for legal representatives and decision makers from the client to spend a whole day together focused on the dispute, which is always valuable. As they say, the journey is sometimes more important than the destination.
In what ways can mediation represent a cost-effective course of action for disputing parties?
I have already touched upon the obvious savings on legal costs, but you can buy certainty through mediation which is often extremely valuable to a business.
It is always possible that you might do better at trial, but that involves rolling the dice and taking a gamble. Even with the strongest legal case, there is always a risk that a judge will not agree. This is why we have the appeal process, but that is not a cheap option! With mediation you can decide what your parameters are and work to achieve that.
Mediation also provides an opportunity for parties to agree commercial matters, which have a financial value but would be outside of the court's power to order as relief. It can also be an opportunity to preserve an ongoing commercial relationship, which can have a significant financial impact.
In litigation there is always a winner and a loser but in mediation it is possible for both parties to walk out as winners.
What factors should parties generally bear in mind when selecting a mediator?
One size does not fit all and there is a huge selection of mediators to choose from. I would suggest that you have a few scoping questions in mind to lead you in the right direction:
- Think about the client first. What sort of person will they be comfortable with, in order to develop a trusting relationship?
- What sort of person is best suited to work with the opponent team and their approach to the dispute so far? Is someone patient likely to be suitable or would it better serve the purpose if the mediator was more directive?
- Is the matter likely to be resolved in one day and does the proposed mediator have sufficient availability to dedicate their time to it? Will they be available in the following days to assist with further negotiations or do they have back-to-back mediations.
- Is there a particular specialism which would be of assistance?
Finally, it is important to note that mediation is currently an unregulated profession, so anyone can say they are a mediator, even without experience or an accreditation. I would always consult with the Civil Mediation Council to check whether the proposed mediator is registered and therefore bound by the standards maintained by them.
Are there any common characteristics of a successful mediation?
The most common factor in all of the successful mediations that I have been part of is trust in the mediator and the process. It is important for parties to feel that they can be entirely open with the mediator and trust them to maintain confidentiality and use the information that they have to help to find a resolution.
Another common characteristic is good preparation by the parties and their lawyers ahead of the mediation day. This assists in identifying issues that will move the dial on the day of mediation. It is important to go to a mediation with a clear idea of your interests (what do you need and why) as well as than your position (the legal merits of your case and what you want to achieve). It is also important to be clear on what your best alternative to a negotiated settlement is, as well as the worst case scenario, with the associated costs.
Can you please share an unexpected learning experience you have had in your years of acting as mediator?
I will give you three:
- As a general rule, the lower the value of the dispute, the harder your need to work as a mediator.
- The blocker to a resolution is almost always people. It is important to think carefully about who attends a mediation and who has authority to do a deal on the day.
- Not all parties will prepare for mediation properly, so it is really important as a mediator that I guide that process to ensure the best chance of success on the day.
Are there any scenarios in which you would not recommend mediation?
No, it is a flexible process which can be adapted to fit the needs of the parties and the dispute. I think there is a place for mediation in all disputes. However, to be effective, it must be a voluntary process and timing is key.
It can be appropriate to engage with mediation at a very early stage in a dispute but also it may be completely inefficient if there is no understanding of the issues and exchange of documents or expert evidence is going to be a key element of the case. Sometimes parties need to have lived the dispute for a while before they feel able to compromise.
Mediation has a very high success rate (92% of mediations result in resolution, according to CEDR's latest mediation audit) but this is not possible without a compromise. More often than not, parties walk away with a deal they can live with, rather than what they were aiming for and this is only possible when the time is right.
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