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.

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

What Can Strathesk Resolutions Do For You?

Approaching Bass Rock from the south

Strathesk Resolutions specialises in helping businesses to identify, resolve and, ideally, avoid individual or collective problems with their staff through targeted analysis, mediation, training, coaching and mentoring.

We draw on years of experience working collaboratively and constructively to achieve the right outcome to complex industrial relations situations.  We deliver straightforward advice, training and solutions that encourage and develop relationships based on understanding, cooperation and trust.

Our open and honest approach ensures fairness to all sides whilst guaranteeing the needs of both the individual and the organisation are properly considered. Having worked with Trade Unions for years we understand the need for clear and concise communication, whilst influencing and negotiating in an expert manner.

You can expect us to thoroughly explore your problems, ensuring that we properly understand the problem before we start working towards a solution.  We will also keep an open line of communication to ensure that you are fully aware and involved in developing approaches.

Targetted training!

Strathesk Resolutions Limited deliver customised mentoring and advanced coaching programmes designed to fit your needs.  Beginning with a training needs analysis to identify specific requirements, these provide training and assistance in areas as diverse as:

  • Negotiating with employers or employees,
  • Handling bullying & harassment in the workplace,
  • Succession planning.

We also offer courses on ‘Working in Partnership’ and the ‘Information & Consultation of Employees Regulations’ to help you decide the best model for your organisation to engage with your staff over more difficult issues.