Dear professional colleague,
I’m writing this open letter to you so that you understand a little about how I operate and what I expect from you, and of course to invite you to pick up the phone and ring me whenever you like. I have a dedicated phone for this work on (07548)397903. Like you, I’m not always available to take a call.
Next, I will consider your involvement with the mediation process.
Your involvement in the process
Mediation is a voluntary, non-binding process with a view to resolution of a dispute based on a negotiated solution with which both parties are happy. It is unlikely that their negotiated agreement follows what a lawyer would expect the outcome to be if the matter were put before a judge.
Whether or not your involvement is required at all, and if it is, to what extent, is a matter entirely for you and your client. It’s not for me to suggest the extent of your involvement. No matter what the circumstances of your client’s case, I would like to discuss your role with you as early as possible in our arrangements so that the mediation process, and particularly meetings, are conducted efficiently and the best possible outcome achieved.
Points I would specifically ask you to consider
- If by chance your client is already involved in litigation, you may find it useful to explain the outcome of Laporte v Commissioner of Police for the Metropolis  EWHC 371 (QB) (19th of February 2015).
- My task is to investigate the potential for joint gains in resolving a dispute. For that, I will look outside the Law and the legal system. In this regard you can see what I believe are the main advantages of mediation.
- I offer you three alternatives as to your presence on the day of a mediation meeting.
You arrange with the solicitor for your client’s conflict-party that you will each lead the negotiation for your client. During the day, you will then address only that solicitor and not his/her client. I need this rule to prevent a negotiation from descending into a cross examination.
Your client manages his/her own negotiation, probably after you have presented his/her position statement at the start. After that your role is to advise your client, either publicly or privately, in a separate room, to enter into discussions in caucus meetings with the mediator and to assist in the drafting of the final heads of terms document.
You are not present at a mediation meeting but have arranged to be available to your client by telephone. I discourage you from joining the meeting at a late stage, but I accept that it may be essential for your clients acceptance of a deal, to be happy that you have been involved personally. Your involvement in drawing the heads of terms agreement should certainly be useful.
Whatever your role, it is helpful and efficient if you make it clear to your client.
- Please check the time allowed and booked in our diary by your client. Every participant tends to underestimate the time requirement. It is in all our interests that the mediation meeting can be as far as possible, continuous, moving, if necessary, to a second and third day. My cancellation provisions are very fair, so as to encourage success in resolving every dispute.
- At an early stage in the process, I would like to talk to you on the phone or to attend a meeting with both solicitors (no clients) to discuss the issues. If we are speaking privately on the phone I should be particularly interested to hear your opinions about:
The effect on your client of a failure of the mediation
The effect on your client of a successful mediation
Why the dispute has not already settled – what are the roadblocks?
What your client requires their conflict party to do, or not do in order to achieve a mutually satisfactory settlement.
- Please bring to the mediation meeting only people who are necessary to the discussion. I shall not accept “hangers-on” who are interested simply to know what is happening, nor shall I allow such extras to take part in discussions. I shall expect either you or some person nominated by your client to be the principal participant while others merely contribute at that person’s request.
- If you intend to bring more than yourself and your client to the mediation meeting, please remember to arrange the venue so as to accommodate whatever team as required by both parties.
- It may be beneficial to your client’s case for you to “control” the documentation. I certainly would not expect a vast “trial bundle”. There will be points made in your client’s position statement which you may decide required documentary support.
- We are dealing with two participants who are unlikely to be lawyers, so please make sure every text is simple, clear and relevant. You may like to read a couple of web pages relating to documents here and here.
Documents need to be limited not only to what is essential to the negotiation, but also to what your clients conflict party can understand. This applies in particular to the fine tuning of the position statement. Logical structure and clear points will assist your client’s case. It is not part of my job to translate convoluted text and jargon.
- Much the same applies to expert reports. So much better if an expert report has been agreed. If it has not been agreed then of course your client’s position statement should set out clearly, the points made in the report and why they support your client’s case.
- I have no objection to your leaving the room to talk to your client from time to time nor, of course, to your presence at caucus meetings. I’m also happy to speak to you confidentially, or to you and your opposite number together, during the mediation meeting.
- Please keep your client fully involved in the management of the process. This is not something he/she can delegate to you, as they might expect if you were (or are) managing litigation.
- Some element of mutual goodwill is essential for successful mediation. If both parties do not set out with a view to settling the dispute then it will not be settled. The situation is most likely to arise when either a judge or you have advised your client that they should go to mediation and “get it out of the way” before continuing to litigate. As a result, I would be grateful if you would please do your best to help your client to treat the mediation process as a real opportunity to settle her/his dispute.
- I always hope to be able to spend the last half hour or so of the mediation meeting in drawing in the strings and setting down the agreed terms in writing.
- The form of the final agreement depends on the instructions of the conflict parties. My aim is to provide a document which is binding and dated and which incorporates all of the terms which the parties are ultimately happy to agree.
You and the solicitor for the other side may decide to expand into a more detailed agreement. In either event, if you are present at the meeting I would expect the detailed drafting to be done by you.
- You may wish to consider our mediation agreement.
Finally, I do have a special request. PLEASE accept the proposition that the mediation meeting has been set up with a view to settling your clients dispute through a negotiated agreement which requires an open mind and your full cooperation with me in my management of the day.
I do hope you have found this letter helpful and that you will ring me with any question. I have about 60 pages of information on this website. I do hope you will find time to read a few of them.