Mediation remains popular in the public sector. The trend continues of its increasing use in the workplace, in family law and commercial and contractual disputes. So what’s happening in practice?
Anyone who has an interest in mediation could benefit from knowing more about what’s happening in practice. But the pillars of mediation – confidentiality and without prejudice privilege – can make that difficult to discern. One helpful source of information comes from CEDR (the Centre for Effective Dispute Resolution), a very well respected non-profit alternative dispute resolution body. CEDR publishes model mediation documents (such as a model mediation procedure, agreement to mediate, alternative dispute resolution contract clauses etc) and updates these annually. When it does so, it uses its knowledge from handling mediation cases. Below we look at some of the changes CEDR made for the launch of its 2017 documents, providing a useful insight into current practice.
The growing practice of setting up mediation at late notice
The timing of a mediation is critical. It impacts on the tone of a dispute and the chances of a mediation succeeding. When considering what is the “the right time” to mediate, one should look at the whole picture and ask questions like how well developed is the dispute, what the parties’ relationship is like, what is at stake financially and otherwise and if there are other dispute proceedings in progress, where these have got to.
Parties wanting to set up mediation at late notice is something we are seeing more of, particularly by parties with more mediation experience. Doing so to try and break a stalemate, to settle part of a dispute, or to begin a series of mediations are all good ways to make use of mediation’s flexibility, especially in very large or complex disputes. However late notice mediations can also mean that parties have unrealistic expectations or may be under prepared. The best way is to consider each dispute and each potential mediation on its own merits and decide what is most suitable in that case.
Clarification around expectations and parties attending in “good faith”
CEDR says that it now stresses in its documents how parties will attend mediation in “good faith” and provides clarity on what is expected, along with stronger language on the purpose of mediation. Certainly parties agreeing to a mediation and then engaging on the day are two different matters. Often parties will make the most of their mediation day, especially after having spent time and money in preparing and going along. This is not always the case, but largely we see parties getting stuck in once they are there.
Good faith wording is appearing increasingly often in agreements to mediate (which is the document signed up by the parties and the mediator before the mediation day starts). It can be useful to set expectations and to encourage the parties to think through why they are mediating. Parties can also do their part – preparing thoroughly, engaging properly and being realistic – can all help each other to participate in the mediation in good faith.
Providing certainty if the mediation does not settle on the day
There is a growing trend of mediations which do not settle on the mediation day, but which do shortly afterwards. (Whilst interestingly, the overall settlement rate of mediations remains around the same, at an impressive 85%). That means parties can still be discussing matters arising in the mediation when they are not part of the formal process. So CEDR now confirms that unless the mediation has been formally concluded, where the mediator is in contact with the parties after a mediation the provisions of the agreement to mediate should be taken to continue to apply. This is a common step, to allow the mediation (and the therefore the terms of the agreement to mediate) to stay in force around later communications. This means parties who have not resolved matters can keep discussions going after the mediation day itself.
CEDR’s Mediation Audit
These issues were all identified by CEDR against the backdrop of it biennial mediation audit, the latest being published in mid-2016. This looks at the attitudes of civil and commercial mediators and separately lawyers. It highlights some interesting trends: the number of civil and commercial mediations has continued to grow; whilst overall the growth rate seems to have slowed; parties are more often approaching mediators directly, than through nominating bodies; there is a trend away from using lawyers as mediators; and there are signs that mediations are become “harder” as users’ negotiation skills are getting better. All of which tells us that mediation in practice continues to develop and it’s worth keeping an eye on.
More information about CEDR and its model documents can be found here.
