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 (07907) 964565. Like you, I’m not always available to take a call.
You are welcome to have a look at my CV. I first set up a mediation practice many years ago (that is how I managed to catch this domain name), but rather stupidly allowed it to lapse as a result of a sudden interest in other adventures. However, I miss the satisfaction of a job well done – and very greatly appreciated – that comes from professional practice. So I have come back to mediation, but without the professional law practice.
Of course, I have a far greater depth of knowledge in some areas than in most areas. Nevertheless I am not particularly looking for mediation participants in my specialist areas. If the subject matter is esoteric, I may suggest the appointment of an expert to assist me in unravelling the finer points.
I fervently believe that mediation is a great way to use my combined experience in professional practice, extremely wide commercial experience, and what I believe is a pretty deep understanding of human nature. I believe that mediation is on the cusp of a wave and that, with luck, I shall have just caught it in time. I must confess I feel somewhat cynical about the current attitude to mediation in many circles – “just go on a course” and become a mediator.
Of course, I am available to your clients. I do not pay referral fees, but I’m sure I shall be able to find other ways to say thank you.
Now I will turn to the prime purpose of this page which is to set out your involvement with the mediation process.
The purpose of this page
The average person who comes to a mediator for help in settling a dispute relating to business of one sort or another is likely to be more commercially savvy than the average person who wants help with the financial affairs in their divorce or separation. That alone means that the mediation process is different in one case from the other.
In a family law setting, my aim is to achieve a “level playing field”. Whatever the “woke generation” insist, my personal experience is that one of a separating couple tends to know more about the money than the other. More often than not it is the male who is in the stronger financial position and often prepared to take advantage of that. That situation takes a lot of careful and tactful management on the part of any mediator, but nonetheless it is important to achieve it.
On the other hand I would never regard it as part of my job to take on the role of the judge to make sure both sides come out of the deal with a precise and equal share of the goodies. If you would like to know more about how I work, I should be happy to arrange to drop in at your office. There’s more to it than I would like to talk about on the phone.
Achieving a level playing field when both the conflict parties are in business (as opposed to divorce) depends largely on their respective financial clout. When the alternative to a mediated settlement is ultimately litigation, money is power – just as it is in any contract situation.
Your involvement in the process
Mediation is a voluntary, non-binding process with a view to resolution of the 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. I am not interested and will not ask. In summary, here are the points which do matter to me:
- Mediation is not a legal process. I shall therefore always deal primarily with the conflict party rather than with you. With your client’s authority I will happily copy everything to you but I will take instructions only from your client.
- If by chance your client is sceptical about mediation, 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).
- Part of 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
- If your client decides in the days close to the meeting that he/she would like your presence, then I will may well insist on the meeting being deferred so as to enable the other party to instruct his or her solicitor too.
- For you to spend a full day out of the office on your client’s affairs will cost your client a chunk of money. It seems to be more likely that you will be instructed on specific tasks such as to fine tune the position statement for a divorce situation or, for business and all other subjects or to provide advice when required, particularly on the day of the mediation meeting.
- Another area where your professional help will be extremely useful to your client is as to what documentation should be provided. There will be points made in your client’s position statement which you may decide required documentary support. We are dealing with two people who are unlikely to be lawyers, so I shall not be happy to encourage them to use any text which is not simple, clear and relevant. You may like to read a couple of web pages relating to documents here and here.
- Of course, I take a different view with regard 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.
Please remember that mediation assumes that the parties come to the table with open hands. If any document is provided too late for your client’s conflict party to assess it, I may have to defer the mediation meeting until after sufficient time has been given. That will result in additional cost.
- If you are instructed to attend the mediation meeting, I shall assume that you will wish to present your client’s case (as set out in her/his position statement) at the outset. It is a good idea to conclude with a very concise summary. After that, I expect each party to negotiate personally, leaving your role limited to advising your client, and not conducting his case as you are used to doing in court.
- As far as the mediation process itself is concerned, I am very happy 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.
- 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.
- 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.
- If you and your opposite number consider that your involvement may increase the time required for the mediation meeting, then it is important that you make appropriate rearrangements so as to avoid difficulties or embarrassment in extending the time allowed.
- I always hope to be able to spend the last half hour or so of the mediation meeting in a drawing in the strings and setting down the agreed terms in writing.
For a divorce settlement I shall include in the agreement as far as possible provisions that are appropriate for you to include in the financial consent order.
For any situation other than a divorce settlement, 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.
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.