BlogCivil Mediation

Civil Mediation: What happens behind closed doors?

By 7th November 2023 No Comments

The accompanying webinar is aimed at those legal practitioners who have never used civil mediation before or those who would like to know how to get the most from the mediation process and how to achieve great results for their clients.

John Healy of Crowther Mediation is a seasoned mediator with a wealth of experience in both Civil and Commercial Mediation and Family Mediation.   Crowther Mediation is the largest mediation practice in the North of England and the only independent UK mediation practice in the UAE.

John answers the following questions:

  • How can I prepare?
  • How can I prepare my client?
  • What is expected of the solicitor on the day?
  • Time scales
  • Costs
  • What happens at the conclusion of mediation?

A while ago I had the pleasure of mediating a probate dispute. The value of the claim wasn’t significant, but the passion of the clients was just as great as any multi-million pound case.  But then, they always are. Sometimes, the lower the value of the claim, the more hotly contested it is, right?

So this was nothing new for me. These clients deserved my empathy and understanding as much as anyone and through careful negotiation of the more emotive issues we were able to reach a settlement.

So what made this case stand out?  The legal representatives.

One party was represented by a solicitor with whom I have worked with before.  The other part was represented by a solicitor with whom I had never met.  Towards the end of the mediation, the clients she represented were expressing their gratitude for my hard work in bringing this matter to a conclusion.  At this juncture, the solicitor jumped in and said she was similarly impressed. In fact this was her first time in her 20 years career in dispute resolution, that she had ever used mediation!

On further exploration it became clear she hadn’t really understood what it was about and when it was appropriate to use it.  I thought there must be other legal practitioners who feel the same way – so the idea for the webinar was born.

How Can I Prepare?

We all know the more prepared you are for something, the more relaxed you are. This doesn’t mean you should bury the mediator in paperwork, trial bundles and case law. The chances are we won’t read it all.  Please provide the mediator with a concise bundle, including position statements and offers exchanged.

If you send me twenty lever arch files of information, I will still find out something about your client that isn’t in any bundle.  Usually, something you think isn’t pertinent to the legal case, but rather it’s an emotive issue of massive importance to the client. The very thing that might motivate them to settlement. 

However, there is often some merit in preparing your case extensively. If mediation doesn’t work, you have already prepared for court.  This also represents a really good opportunity to have a look at your opponent’s case and learn what to expect a court.

How Can I Prepare My Client?

Managing client expectations is never easy and mediation is no exception.   Tell your client about the process. Reassure them they won’t have to be in the same room as their opponent and can even arrive at different times so they don’t need to bump into each other.  Sometimes, you can agree in advance they can bring someone along to support them (notwithstanding confidentiality).

Don’t give your client unrealistic expectations.  Prepare them for the inevitability of compromise.  Don’t set hard and fast ‘bottom lines’.  Quite often clients think they know what their bottom line is when they enter into mediation, but in reality, they are usually prepared to go beyond this to achieve a settlement.  My job is to get both parties to re-evaluate the bottom line – don’t make it harder for me!

What Can You Expect from a Civil Mediation?

A LOT of sitting around!  The process involves you and your client sitting in close proximity in the same room for many hours. As a mediator, I move back and forth between the rooms gathering information and building offers.  When I am not in your room, you are left alone with your client  – there isn’t enough small talk in the world to cover this situation.

You’re not being paid by the word, so don’t feel the need to be filling each minute with fountains of legal knowledge.  At some point in the day, you will be called upon to give some really robust and decisive legal advice – it’s in these moments you earn your entire day’s fee. So my advice?  RELAX.  There’s no pressure on you. You’ve done all the prep work. Just let me do my job.

Any awkwardness you have will only transfer to the client – making my job harder.  I will provide you with tea/coffee and a stack of newspapers, but more importantly, I will verbally give you and your client permission to ignore each other until it becomes necessary to speak.  Enjoy a ‘cuppa’ and read the paper. When in your career has anyone ever suggested you do that while you’re ‘on the meter’? Welcome to mediation.

Costs of Civil Mediation

Aside from the obvious costs of the mediator’s time, there are also your own costs in the time you spent preparing for the mediation and your attendance.

Know your costs!  I will always ask clients how much they have spent in litigation so far and how much it will cost them to go to trial.  They need to make informed decisions and we all know nothing focuses the mind quite like costs.

From a mediator’s perspective there is nothing more frustrating (and it happens regularly) than reaching a settlement and then one party says ‘Oh and we want our costs?.  So I go and ask for costs and by some miracle I manage to get that over the line, only to be told ‘but that doesn’t include our costs for today, that’s another £xxx’.  OK now you’re really making me work hard!  By this time the other party has usually lost faith in the negotiations while the goalposts are continually moving.

Be prepared. Know your costs and make sure your clients know them too. It makes for very awkward small talk if clients get surprises on cots. 

Time Scales of Civil Mediation

Be warned -it can go on a bit! Get ready to reschedule your evening plans and arrange a school pick-up. Most mediations will be paid on a date rate or half day with a start and end point. However, the mediation terms give the opportunity for the session to continue after the finish time at an hourly rate, if all parties (the clients) feel it’s beneficial.

As a mediator, I will always stay as long as the clients want me to – even into the early hours of the morning!

We will always provide dinner lunch/dinner/refreshments. No one makes good decisions on an empty stomach.

What happens at the conclusion of mediation?

If a settlement is reached, it is expected the legal advisors present will draft a heads of agreement, amended contract, amended will etc there and then and all parties are expected to sign it. Making the decision legally binding.

This is why it is so important to make sure the ‘decision makers’ are in the room. Is the client on attendance authorised to give instructions and make decisions?  

Are you the solicitor handling the case?  Do you have the authority to give advice.  If the case settles outside of office hours, it might not be possible to speak to someone in authority to make a decision.

If you are unable to advise your client or they are not authorised to make a decision, not only do you run the risk of losing the settlement, but you may also be facing a wasted costs order if the matter proceeds to court.

Having a greater understanding of the process, will hopefully help us to work together to achieve great results for clients.  If you have any questions regarding the process or even some ideas about how we could adapt our process to better help you, please don’t hesitate to get in touch. 

Listen to the Crowther Mediation webinar >