How to "win" in mediation legalwatch David Gwillim

legalwatch
How to "win" in mediation
David Gwillim explains why mediation
is becoming such a popular form of alternative dispute resolution
LARGE projects in the process and
pharmaceutical sectors carry big
risks. Despite the best-laid plans,
things can go wrong. This is when the
parties are likely to end up in dispute.
Court proceedings and arbitration are
notoriously expensive and adversarial.
Mediation is becoming an increasingly
attractive option to resolve large
disputes without ending up at
loggerheads.
what is mediation?
Mediation is a dispute resolution process
in which an independent third party
helps two or more parties negotiate more
effectively because the third party holds
information from each side that the others
do not have. Through the trust that is
reposed in mediators, parties can find
extra value that conventional negotiation
misses.
is mediation a good thing – the
myths and the reality
Above: Mediation
is becoming an
increasingly
attractive (and less
costly!) method of
dispute resolution
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Interest in and demand for mediation is
growing in many industries, spearheaded
by multi-national companies. They are
interested in meditation because it offers
an alternative to the other common forms
of alternative dispute resolution including
expert determination, adjudication and
arbitration.
However, lawyers tend to be creatures
of habit and these are not always good
ones. It is generally perceived that
lawyers are looking to score points; they
want to grandstand, play hard-ball and
win, whatever the cost. The onlooker
tce june 2006
could be forgiven for thinking that a
lawyer believes that better fees are to
be made when a case does not settle
and proceeds to litigation. The process
of mediation requires a lawyer to give
greater control to his client and that, of
course, means that the lawyer risks losing
control of his case. This again could be
seen to sit at odds with the usual manner
in which a lawyer would wish to conduct
matters.
The reality, of course, is different. The
case is the client’s case and successful
mediation means a satisfied client.
the business case
The simple truth is that businessmen
want to get on with their business. In
a construction or engineering project,
engineers want to pour concrete, solve
technical problems, complete the project
and move onto the next one.
There are many reasons why no
business wants to tie up their resources
in long drawn-out dispute resolution
proceedings and damage the relationships
on which their trade thrives, courting
unwanted publicity in the process.
Traditional dispute resolution
procedures result not only in the direct
expense of legal costs, but also the tying
up of senior, productive personnel who
have to devote time away from running
their business to concentrate on the
conduct of and participation in the legal
proceedings.
The process of litigation involves
procedures that invariably are well-
known to the lawyers involved, but which
are not necessarily readily understood
by the untrained businessman. This
can be contrasted with the more open,
straightforward form of negotiating
employed in mediation which will be
something with which the client will be
much more familiar.
Another reason is that the outcome
of litigation and arbitration is always
uncertain. Litigation frequently produces
damaging publicity and hurts the
reputation of the companies in the market
place. Litigation, once commenced,
cannot be controlled and this lack of
control is even more marked under the
new procedural regime bound up in the
new Civil Procedure Rules. Furthermore,
litigation is seldom final. Appeals can
bring another year or two of uncertainty.
In foreign arbitrations, enforceability in
jurisdictions where the assets actually
are always poses considerable difficulties.
In under-developed foreign jurisdictions,
alternative dispute resolution in a neutral
country is almost always the best option.
To get a better understanding and
appreciation of its strengths, let's consider
the advantages and share some tips on
how to get the best out of it.
preparation is the key
Against the background of agreed or
exchanged issues in the mediation, both
parties make a significant investment
in preparing a position statement with
supporting documents. The first task is
to explain the issues to a mediator in
legalwatch
a way that is attractive, digestible and
persuasive. The mediator is not actually
interested in imposing the ‘right’ solution
on the parties or establishing precisely
where the merits lie. Nevertheless, against
the background of a principled mediation,
a mediator will need to be shown where
the middle ground is. That is the most
important aim of a position statement
and this should be backed up with primary
material and cross-referenced. A good
position statement will have been drafted
with the mediator in mind.
Often there is a short meeting between
the parties and the mediator individually
where the mediator introduces himself,
outlines the procedure that the mediator
wishes to adopt and explains the rules
of the mediation. The aim of this first
meeting with the mediator is to convince
him that your side wants to settle, will be
amicable and responsive to any reasonable
proposals and that your side will conduct
themselves in a principled and cooperative
way.
Often the day starts with the mediator
obtaining a comprehensive note of
the attendees and a signed mediation
agreement which will address the following
key issues:
• the parties can’t sue the mediator;
• anything that takes place in the
mediation is without prejudice. The
mediator’s notes are not available for
production in any subsequent proceedings
and the mediator cannot be the subject of
a witness summons;
• anything said by the parties to one
another or to the mediator cannot be
raised in subsequent proceedings;
• the mediator will want assurances that
those present are the individuals with full
authority to settle.
the first set piece
A plenary session will follow this first
meeting in which both parties set out
their respective cases. This is the first
opportunity for your side to outline the
following key elements to the mediator:
• Settlement: that the party seeks
a bona fide principled negotiated
settlement; that the settlement ought
to take into account the party’s case
against the background of the agreed or
identified issues and then to explain the
issues in more or less detail against the
backdrop of the documents.
• The issues: the legal team can step
back from the dispute and enable the
client and the technical team to explain
the issues directly to its peers in the
opposing party and to the mediator. This
will often be the first occasion on which
the decision-makers in the opposing party
will have had to assimilate the dispute
from your side’s point of view. Until that
moment often the only knowledge that it
will have had of a significant dispute will
have been filtered by its junior staff, by
its technical advisers and by its lawyers.
This means therefore that this is the
opportunity for the parties to tell it like
it is directly to someone of equivalent
status. This requires some practice and
rehearsal but it is useful if this is done in
an informal, relaxed and direct manner.
After the break-up of a plenary session
the parties will go back to their own
rooms and the mediation process proper
then begins. The process itself throws up
a number of practical challenges.
Some factors can easily be dismissed
as trivial but can in fact influence a
successful mediation. It is important
to scout out the accommodation
beforehand. The windowless room can be
an advantage in mediation but on the
other hand can also result in complete
failure. The participants in mediation
should be comfortable as the process,
although conducted in a relatively short
period of time, is intensive. Another
consideration is refreshment. The
mediation process could last well into
the evening and the participants need
to keep an eye on blood sugar levels and
hydration. Something as simple as a lack
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food and drink has been known to cause
the failure of an otherwise promising
mediation process.
The mediator is bound to spend long
periods of time with the other parties
to the mediation. That means relative
inactivity in the party not being attended
by the mediator and to overcome the
cabin fever that results it is suggested
that you bring reading material to fill the
time. This will also help avoid the trap of
trying to second-guess what is happening
in the other mediation rooms. It is helpful
during a long mediation to request that
the mediator hold a second or even third
plenary session in order to see whether
areas of the dispute or key issues can be
advanced or modified or simply discussed.
David Gwillim
is a partner
in Speechly
Bircham’s
construction
& engineering
group (www.
speechlys.com/
construction_
engineering)
the agreement
It is important to remember that an
oral agreement is not worth the paper
it is written on. The typical mediation
day ends at 20:00 hours or later. The
participants will be tired and may not be
able to devote sufficient care and thought
to the terms of a concluded settlement.
It is vital to have a laptop and a skeletal
settlement agreement available so that
the agreement itself can be typed up,
circulated and signed there and then
before anyone leaves.
The lawyer, in mediation, is no longer
an advocate, he is a faithful and trusted
guide. The lawyer is not there to foul
up the mediation by discussing strategy
behind the mediator’s back, by posturing,
by threatening to leave the mediation or
generally by throwing his weight around.
The lawyer’s role is to work with the
client and the mediator by exercising
perseverance and patience to achieve a
settlement.
If this is understood, and the
considerations discussed here are
understood, the mediation should be a
success, the client achieves a favourable
outcome, without having to go down the
costly route of litigation. tce
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www.powdersystems.com
june 2006
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