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. Like you, I’m not always available to take a call.
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.
It does not matter to me whether or not your client is represented at any stage of the mediation process. However, it is important that you let me know at an early stage, whether or not you will be likely to attend. My reason is that the other participant might find it intimidating to discover at the last minute that your client was represented. If the other participant does not have an adequate opportunity to instruct a lawyer, then it is likely, for the sake of balance, that I shall defer the mediation meeting.
The extent of your involvement at the mediation meeting is a matter which you could usefully agree with your client. In any event, I will give both of you the opportunity to speak both in open meetings, and with me, in caucus.
Your client is free to bring whoever he/she requires to the mediation meeting. It would be helpful if you would discuss this with your client so as to limit the number to those who are absolutely necessary. In particular, it seems reasonable to assume that your presence and contribution alone, will be sufficient in most cases.
Points I 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 have no problem with an arrangement whereby you are not present at the mediation meeting but have arranged to be available to your client by telephone. However, experience has it that such conversations often result in a participant using the timeout for a long conversation with his/her solicitor which may well embrace issues other than the mediation. Since the mediation is time-limited, it would be helpful if you could keep such conversations as short as possible.
- Occasionally, there is a good reason why a lawyer should attend the mediation meeting at a late stage. That would be acceptable only if the other participant agreed or there was some overriding requirement why your client should be represented.
- Whatever your role, it is helpful and efficient if you make it clear to your client before the meeting.
- 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 moved to a conclusion within the time allowed. If an adjournment to a second day is necessary then of course we will accommodate that as far as possible.
- 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). I should be particularly interested to hear your opinions about:
The history of the dispute
Why the dispute has not already settled – what are the roadblocks?
- 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.
- I am happy to accept up to 50 x A4 pages. I am aware that just one expert report can easily run to twice that, so please don’t expect me to become an overnight expert on a subject at the edge of human knowledge. Please send documents only by upload to my website. That process makes clear which documents are open and which are private to me.
- Of course, it would be most useful if you could provide an agreed bundle.
- I will read whatever documentation you provide but will make an additional charge if the volume requires additional time.
- It is useful for me to be able to take a view on the history of the case, but my role does not require me to assimilate the detail. My aim is to enable the participants to achieve a settlement which leaves both of them satisfied. As you know, the legal position is merely a background. It is therefore up to you to refer me to a specific important point in a document, whether openly or in caucus, during the mediation meeting.
The final agreement
Whether or not participants are legally represented at the mediation meeting, I always expect to be able to spend the last half hour or more in drawing in the strings and setting down the agreed terms in writing.
The form of the final agreement depends entirely and exclusively on what the participants want. In the interest of impartiality, I regard it as essential that I do not assist or advise in this process. Exceptionally, I might write the terms dictated to me. That is all.
For any mediation meeting in which both Participants are represented, I would expect the two lawyers to draw a heads of terms agreement. I respectfully suggest that a template document could be a useful start.
You and the lawyer 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.
Miscellaneous other points
In this website I use the term “position statement”. I work as a “facilitative” mediator so that term may sometimes be inappropriate. Nonetheless it is commonly used, so I will stay with it.
The mediation meeting will undoubtedly be more productive if the participants each provide a position statement which clearly sets out how they see the history and in broad terms what they want to achieve out of the days meeting. I would be most grateful if you would assist your client in that regard.
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.
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.
As I have explained elsewhere, I prefer that the participants should provide the venue. I am happy for this to be a lawyer’s office, provided that can be agreed and complies broadly with my suggested list at the link above.
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.
Andrew R Taylor