Legal mediation: time to start talking!

With court business still at a low ebb, there has never been a better time to consider mediation. Find out how online mediation works, where to access it and how you can try it out

Impact of COVID-19 on civil business 

First, the bad news. Ongoing Government restrictions mean that, for the foreseeable future, we’re likely to have social distancing in one form or another. It therefore follows that “normal” human contact is, at best, going to be difficult. One result is that many legal actions have been paused and proofs/tribunals in civil cases have been put off, causing a large backlog of cases. Many have been put back by years. The civil justice system as we have known it is not functioning, clients’ interests cannot be taken forward quickly, and lawyers’ businesses are suffering. So, what’s the good news?

Well, there has never been a better time for lawyers and clients to consider legal mediation! Mediation is an approach that puts client involvement, and their best interests, first. It is quicker, and cheaper (for both clients and lawyers as there are no court fees), than going to court, carries less risk and, with direct solicitor involvement, keeps clients fully legally informed and in control. Most importantly, using an appropriate online conferencing facility (most mediators use the Zoom Pro platform), it is possible to maintain client and legal confidentiality (more on this later). The platform provides for clients and their lawyers to be kept in a waiting room, then to be admitted to a joint meeting room and, when the need arises, to be placed in breakout rooms for private, confidential conversations between parties, their lawyers and the mediator.

In Scotland, while several lawyers, who are early adopters, use mediation, they are still a minority. Many litigation lawyers haven’t yet had the opportunity to become familiar with, or take part in, legal mediation. In some senses, the Scottish legal profession has seemed reluctant to embrace it, despite it being the norm in many other jurisdictions, but current circumstances may persuade it to do so.

Legal mediation as a win-win-win option

In Ontario, Canada, mandatory mediation has been part of the court procedure for 21 years. Most litigated cases go through mediation. A mediator is appointed and arranges a mediation meeting early in the court process. Prior to that, parties must exchange a mediation statement setting out legal and factual issues, alongside supporting documents. Failure to comply leads to financial penalties being imposed and can result in cases being dismissed or defences repelled. 

Many litigation lawyers worried that mandatory mediation would threaten their financial wellbeing through reduced fees. Unexpectedly, the outcome was much more positive. Mediation, now an integral part of court procedure, means lawyers must prepare themselves, and their clients, to participate and negotiate effectively, in the same way as they need to prepare for a proof or tribunal hearing. As a result, those lawyers recover legal costs and fees in preparing for, and taking part in, the mediation. They get paid a lot earlier too, rather than having to wait until a settlement just before a court hearing or a long time afterwards. In theory, this should free their time to address the cases of additional clients. 

In Scotland, mediation is not an integral part of the court procedure, but it is still available for lawyers and their clients to use and recover costs through efficiencies of the process. In commercial mediation the norm is for both parties to bear their own mediation costs (mediators cost a lot less than court cases). In employment/workplace mediation, employers bear the cost of mediation for both parties. Likewise, in litigation where insurance is a factor, for example personal injury cases, it is the norm for insurers to meet the cost of mediation, including the costs of preparing for it and participating in it. 

Prior to mediation, it is usual for the parties to enter into an agreement to mediate, through which they commit to engage with the process with a view to reaching a mutually acceptable outcome. Within this, it is possible, indeed desirable, for both parties to identify who is meeting the preparation and participation costs to avoid dispute afterwards. It is in the interest of insurers to participate in mediation at an early stage. It prevents the parties becoming embedded in their positions, and will reduce their long-term legal costs, while failure to participate in an offered mediation could result in increased costs by way of court-imposed penalty. 

In the event of settlement following mediation in a litigated case (the vast majority of court cases do settle), or even in an unlitigated one, it will result in lawyers being paid for their hard work much sooner (a particular boon at this time) and, more importantly, their clients’ cases will be settled much earlier, leading to happier clients and capacity for further cases. Generally speaking, clients whose legal disputes are settled quickly with less cost, are more satisfied and therefore more likely to instruct the same lawyers in future cases. If they’ve been dragged through an expensive court or tribunal process for years, they might not be!

Accessing mediation

Scottish Mediation keeps a Register of Accredited Mediators for the Scottish Government – details can be found on its website at www.scottishmediation.org.uk. Other organisations that include mediators are the Law Society of Scotland, the Faculty of Advocates, RICS, CIArb, Relationship Scotland, the University of Strathclyde Mediation Clinic and Edinburgh Sheriff Court Mediation Service, supported by CAB Edinburgh.

Zoom and online mediation/solicitor training

You needn’t wait for normal service to be resumed through the courts in order to progress a client’s case. Mediation can be undertaken now, safely and confidentially, online. Everyone can be there, they can see everyone else and participate to the extent that they want. In the run-up to mediation, the mediator can have pre-mediation meetings with lawyers and their clients by video, enabling parties to become familiar with and trust the technology. By doing so, people are reassured that the actual mediation online is something that they can participate in and that it will work.

Paul Kirkwood, Law Society of Scotland accredited commercial mediator, and Malcolm Currie, a CEDR accredited workplace/employment mediator, are teaming up with Scottish Mediation and its director Graham Boyack to offer online CPD mediation training, using Zoom Pro, to all professionals including mediators and lawyers. The sessions will be fully interactive, featuring mock mediations using commercial and employment scenarios where participants will be coached and encouraged to use the Zoom Pro technology, including the use of breakout rooms. Participants can choose to participate as mediators, clients or lawyers in the role-plays, ideally trying all three for a more ’rounded’ feel of the process. This will provide a safe online learning environment for all, and hopefully go some way to demystifying the mediation process for many lawyers, to give them greater confidence to participate in legal mediation, look after the best interests of their clients and get their businesses going again. Details are on the Scottish Mediation website, but feel free to get in touch with any of us.

This article was previously published in Law Society of Scotland Journal, June 2020

I’d be interested to know your thoughts on this subject, so please leave a comment, but if you’d like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

Taking a Long Look at Yourself…

Bidean nam Bian, Glencoe
One of the disciplines that underpins mediation is the benefit that comes from reflecting on how a recent process has run. But it’s a habit that can have much wider benefits.

How well prepared was I? What went well, that I might want to repeat? Is there anything that I can learn and improve for next time? Reflective practice is considerably easier with a colleague to help prompt the thought process and provide constructive challenges to assumptions and conclusions, but it’s valuable to have a few techniques to guide yourself through the process when you’re alone. To do this effectively, it’s important to have ‘wound down’ properly from the process itself, taking the time to clear your mind enough to reflect more objectively on aspects of performance. In view of that, I thought I’d consider a range of events I’ve attended recently that turn out to have had a common theme running through them: mindfulness.

Connecting Sport and Business

There was an excellent Metis Edinburgh session recently, featuring a talk by Tony Stanger. After a career in high performance sports coaching, he has built a business from taking the disciplines and approaches that deliver in high level sport and applying them in a business context. One of his take-home messages was that to be a great leader, and draw the best from your staff, you also need to be a great coach. Through focused coaching, it is possible to embed thinking and approaches that will allow staff to consistently deliver better of themselves and grow their career while making the organisation more adaptable to changing business pressures.

One of the things that struck me after listening to Tony, and taking part in the discussion afterwards, was the overlap between the reflective practice I follow after mediating and the coaching/management approach Tony was encouraging. Alongside my business activities, I also coach High Performance match officials with Scottish Rugby. Much of that coaching builds on instilling a discipline of preparation and self-analysis. My input is primarily to facilitate the referees through that process – planning, problem solving and strategy development – alongside helping them to identify the areas on which they should be focusing and the most effective ways for them to improve and develop.

Stress and work

These approaches, underpinned by mindfulness practices that unblock thought processes, continue to grow in a business context, albeit their focus is primarily on senior managers rather than wider staff. This point was brought home to me at an Institute of Directors session this week, led by the excellent Gillian Dalgliesh, titled “Managing Stress in the Workplace”. Alongside considering the physiology behind stress and anxiety, and the long-term impacts arising from them, we ran through some techniques to manage stress in ourselves and others, many based on being mindful of the relevant sensations and taking action to address the triggers.

Alladale Wilderness Reserve, Sutherland

All of this links neatly back to the increasing awareness and growing use of mindfulness practices for business leaders, bringing me to the retreat I attended on the Alladale Wilderness Reserve in Sutherland a few weeks ago. Organised and hosted by Natural Change, the retreat aims to “help you reconnect with yourself, with others and with nature to explore what matters to you”.

Natural Change Wilderness Retreats are for people who want to make a change in their personal life, in their professional work, in the world around them – or in all three.

The week featured an interesting blend of solo mindfulness techniques, paired facilitated reflection, slow contemplative walking and a more intense “solo” (an afternoon/evening spent alone in a remote part of the glen). For a more rounded view of the week, check out these updates from other attendees James Scipioni and Sarah Williams. For me, I came away with having rediscovered my love of being in remote countryside, and with a better understanding of why that is so good for maintaining my mental health – hence my trip last week to Bidean nam Bian in Glencoe.

Drawing things together

The common thread through all of these paragraphs is the emphasis on slowing down, being more ‘present’ and constructively analysing recent performance. Of course, the key is the “constructive” part of that, something that only really develops with practice.

This is a theme that continues, particularly in relation to conflict/dispute resolution and mediation. The beginning of June sees an event organised by Core Solutions at which Tim Hicks will explore the neural basis of conflict and communication, based on his recently published book on the subject.

As a topic that continues to gain interest, I’d be keen to find out other people’s experience of exercises in mindfulness, centring and grounding – do people find them universally beneficial? Do you find it really effective and helpful? Have you given it a try and moved on because it didn’t work for you? Or does it all seem a bit ‘new age’ to try in the first place?

Reflections from Tbilisi

Mother Georgia

Kartlis Deda – Mother Georgia overlooking Tbilisi

I spent the second week of April in Tbilisi, Georgia, delivering training on Conciliation of Collective Labour Disputes*.  As with all training courses, and journeys to other countries, I learnt a huge amount from the trip, so I thought I’d reflect on the key points through this blog-post.

Vocabulary

I’ve had numerous conversations in recent months about the language used in and around mediation and other alternative forms of dispute resolution.  Conciliation and mediation are used interchangeably in Georgia, as they often are in the UK, but in many places around the world they have different meanings. This is something that I have increasingly noticed people find confusing.  It gets worse when you start to debate whether or not your style of mediation is facilitative, evaluative or transformative, at which point people not involved in the profession often glaze over while ‘mediation geeks’ get excited about when they might employ each approach. 

For my part, I think it would be better, in promoting the use of mediation (and other forms of ADR), for people to use consistent and, by preference, simpler terminology.  This is a big enough topic for Scottish Mediation to have committed the whole of their Mediate 2019 conference this November, and titled it The Words We Use.  It should be a fascinating discussion, and perhaps we can start to find some consensus.

Mediation as a voluntary process
Tbilisi trainees

Participants in the ITCILO Conciliation of Labour Disputes course in Tbilisi, April 2019, complete their final assessments.

A consistent theme raised by the participants in Georgia, many of whom were already experienced practicing mediators, related to the problems they face due to conciliation of collective disputes being a statutory step without which industrial action by a union would be illegal. This means people go into it as a necessary step in escalating their dispute rather than primarily as a means to resolve it.  My main experience of compulsory mediation comes through the Employment Tribunal application system and the Scottish Sheriff Courts. 

In the former, an applicant to the Tribunal has to go through ACAS Early Conciliation in order to get a code that allows them to complete the online ET application form.  When this system was introduced, it was tied to applicants also paying a fee to the Tribunal service.  As a result, few respondents (the employer against whom the Tribunal application is raised) had any incentive to engage with the process: regardless of the merits (or lack thereof) of the case, why conciliate when the applicant may not have enough money to submit their claim in the first place?  The removal of the fees has resulted in an increasing number of applications people who were inhibited from applying because they couldn’t afford the fee.  However, many respondents still seem reluctant to engage with the conciliation, and it’s difficult not to see that as a factor of it simply being part of the process rather than being seen as a genuine opportunity to find a mutually acceptable outcome.

With the Sheriff Courts, I have found many of the parties not yet ready to mediate, but having been ordered to do so.  A significant majority have reached a agreement, but this has often involved significant preparatory work so they are better aware of the process they are entering and the opportunity it represents to have some control of the outcome.  In such cases, the mediation is, however, genuinely voluntary so provides a real alternative to presenting their case in court with the associated stress, time and costs.

What does ‘success’ look like?

Following on from the above point, some of the mediators in Tbilisi were slightly despondent about their chances of success when starting a mediation. If the conciliation is just “part of the process” what are the chances it can be successful. 

But what IS success in a mediation?

The Tbilisi training team: Soledad Schenone, Malcolm Currie, Sharon Wakeford, Kinan Bahnassi and Ebrahim Patelia

It’s tempting to see a successful mediation only as one that ends in agreement, but that’s not always possible, especially with collective disputes where Politics and politics are in play. In that sense, it could be a success to help the parties better understand the nature of the disagreement they’re having. Or to help them identify options for settlement, without them having actually determined any preference between them. Or simply to understand their own needs (as opposed to wants) as well as those of the other party.

Ultimately, the role of the mediator is to help parties on their journey to a mutually acceptable outcome.  If that is at the start of the journey, perhaps it is success enough to point people in the right direction, while another mediator, later in the journey, might see them safely home.

* The training was commissioned by the International Training Center of the International Labour Organisation

To mediate, or not to mediate, that is the question

DSCN0199Mediation has been around for a long time, and has been used very successfully in many, many situations.

Despite that, many employers have been slow to adopt mediation as an approach, often reluctant to put it in place early enough to prevent some situations becoming intractable.  Indeed, it seems to be seen as an option of last resort.

Does this come from a lack of understanding of what mediation is and does? Or is it seen as an unnecessary additional expense? Whatever the reasons, the evidence suggests that it can be extremely successful, at least for those who believe it can be.  ACAS research published in 2012 showed mediation to be significantly more successful where an employer genuinely commits to the process.  Conversely, it is less effective where an employer is reluctant to use it.  It is not unreasonable to conclude, therefore, that the results are to a large extent self-fulfilling prophecies.

The paradox is that the statistics also show that mediation is second only to direct communication in successfully resolving issues between employees.

In many cases, those trying it have done so with internal mediators. While there are clear benefits from in-house mediators, this approach also needs care to avoid individuals perceiving a mediator employed by their company as being less impartial.  Whether or not that’s true is irrelevant, the perception is the key to the success of the process, so the results may not be what might have been hoped.  As a result, internal mediation may not be the appropriate approach in all cases.  Ultimately, the relative costs of employing an external mediator can pale into insignificance compared to the lost productivity that comes from letting a situation persist or deteriorate.

One conclusion was that one poor result can colour an employer’s view of the value of mediation as a whole.  However, further ACAS research concluded:

more than four in five (82%) [employers] said it had resolved
the issues either completely or partly

A key benefit of mediation is that there is little to be lost in trying it.  In this context, very few independent mediators would hesitate to have a conversation about their approach and to answer any questions that anyone involved might have.  It is better for both those involved and their employer to enter with a genuine commitment to find a mutually acceptable outcome or it is less likely to succeed.

If you’d like to know more about the mediation and dispute resolution services offered by Strathesk Resolutions, please e-mail contact@strathesk.co.uk or call Malcolm on 07736068787.