Paul Rose – BSc Hons FRICS FCI Arb Chartered Arbitrator, IMI accredited Mediator, Panel and Advisory Board Member.
The following situation is not uncommon. Your client has come to you for help because they are in dispute and either wants to sue in Court, or is the Respondent in a lawsuit against them. The lawyer’s common reaction is twofold. First comes the satisfaction of knowing that your organisation has been chosen to represent the client, along with the even more satisfying prospect of earning a good fee. The second reaction, having opened the file, is to interview the client to establish what the claim is about and how to either pursue it or respond to the claim, dependent upon which side the lawyer represents. The distinction between the two sides is crucial, if considered from a purely litigation aspect. But if the objective is to protect the client’s business or property or other rights, then should that distinction matter?
Of course the lawyer’s role is to pursue or defend their clients’ interests and so often lawyers fixate on that one word – “interests” But how often do lawyers ever ask of their clients what their needs may be? For uppermost in the clients’ minds are their desires which they confuse by labelling such desires as needs. The problem facing all litigation lawyers is how to handle their clients wants so as to achieve the optimum outcome for their clients in the circumstances.
All litigation lawyers have a useful set of tools to help them achieve that optimum outcome but not so many lawyers use such tools. That might help to explain, at least in part, why the Courts are choked with a huge caseload, resulting in time delays for cases to be heard. Furthermore, the outcome before Judges with individual perceptions results in uncertain outcomes for both litigating parties, leaving many with their lay perception “was justice actually delivered?”
The fundamental concept of proceeding to Court is to obtain a judicial decision which is legally enforceable. However aside from the risks above, there is the risk that the client may well end up without a profitable business relationship, and losing trust and respect from the other party. This is especially so in smaller value claims.
Over a passage of time, alternative forms of dispute resolution (ADR) have risen. Such alternatives include adjudication and arbitration. Arbitration, in particular, is well known and respected in the Middle East. Indeed, Dubai has its own arbitration centre. With adjudication, especially in the construction industry, the paying party might be so unhappy as to appeal whereupon the case reverts to arbitration which does produce a binding and enforceable decision in the form of an Award. However, Awards can be challenged for a number of reasons and the final appeal is to the Court. The costs of doing so are high and there is always the risk of an award of costs together with the uncertainty of the outcome as above along with time delay.
The other form of dispute resolution is mediation.
Unlike litigation in Court or adjudication where there are time limitations, or arbitration involving shortened, but formal proceedings, mediation is the one form of ADR where the parties can heavily influence the outcome and remove the uncertainty of a third party determination. In effect the parties have the most control over their own destiny.
Mediation can be viewed as a structured negotiation conducted in neutral surroundings, in safety and facilitated by an experienced and trusted neutral third party who can be relied upon to control the proceedings fairly and impartially. Where necessary a Mediator can seek assistance from a trained second Mediator who can assist with technical matters and act as observer. It is necessary to distinguish between mediation and arbitration. Arbitration necessarily produces a decision from the Arbitrator – a third party neutral – in the form of an award. Mediation does not produce any such decision. That does not mean that the parties cannot be encouraged to come to an agreed settlement in the form of a legally enforceable agreement at the end of the mediation.
In the UK, in particular, and in European countries where mediation is common, the success (i.e. settlement rate) of commercial mediations is about 80% of all cases. This statistic should encourage lawyers to recommend this process to their clients especially where there exists any anxieties over the outcome of litigation.
Mediation is a consensual process. It takes both parties to engage in the process. Except where legislation states otherwise, or there are judicial directions requiring a mediation to take place prior to advancing a case in litigation, mediation is a voluntary process. Mediation is also confidential and the general rule is that whatever is said during a mediation is without prejudice and cannot be revealed to a Judge should the matter proceed onward to litigation. The Mediator is bound also by confidentiality and will never reveal anything said to him or her in confidence unless the party giving such material permits the mediator to do so. That cannot be said of an Arbitrator or a Judge in Court.
It is true that mediation may not be appropriate in some cases. The prime example is where the outcome depends upon the determination of a point of law. In such cases, a more judicial process is necessary such as determination of a preliminary legal point in an arbitration; or more commonly, a legal determination in Court. However, in the vast majority of cases, mediation can provide the clients with a solution that works for them. That must be the key motivation to proceeding to an alternative to litigation.
The obvious disadvantage of mediation is the 20% risk that it might fail. That would entail an expense to each party which they might feel was unnecessarily incurred. But this begs the question what is meant by “failure”. In a number of cases, parties use the process as a means of exploring the strengths and weaknesses of the other parties’ case. Such parties may not be operating in good faith; nevertheless, this can happen. In other cases where good faith is being applied, the mediation can result in a post mediation settlement several weeks later following a review of the strengths and weaknesses of a party’s case. Thus failure can turn into success.
There are many advantages to mediation and these assist the litigator. The process, if properly handled, can force the client to examine the reality and strengths and weaknesses of their case. In that respect the process can help the litigator to explain to their client the essential difference between needs and wants. Obtaining the clients’ needs represents a success, even if the client does not gain everything they want. Consequently, the litigator has a greater chance of demonstrating having done a competent job for the client and obtaining the client an outcome with which the client can consider as a satisfactory result. If part of the objective involves the client’s pride then that pride can be preserved. Another advantage is a result that preserves and enhances a business relationship instead of the destruction that can result from Court proceedings.
Other advantages include a rapid outcome without dependence upon a hearing date in Court, an informal process, choice of mediator, choice of mediation style, choice of venue and choice of timing of the process. A major advantage is the ability to express sentiments before a neutral which would not be tolerated by a Judge or Arbitrator, both of whom focus on the law and the facts. Finally, the most important advantage of mediation is that it can produce a result far beyond the jurisdiction of a Court or Tribunal. For example, if the case involves a contract for the supply of services, one outcome could be the supply of additional services as compensation for a breach of the original contract. Another example is a contract for the supply of goods where an outcome could be the additional supply of an additional quantity of the same goods or supply of different goods in addition. Indeed, the combination of remedies is almost limitless. A client can regard any such outcome as satisfactory and a vindication of their position.
In contrast, a Court or Arbitral Tribunal has no jurisdiction to order any such remedies. Once any agreement is confirmed in writing in the form of a simple contract it becomes enforceable in Court; and against the background of the origin of that mediation settlement agreement, the outcome of an action for enforcement becomes more certain; for the Courts support alternative dispute resolution. Mediation is relatively inexpensive and need not involve witnesses. It can be arranged at quite short notice even if the mediator is resident abroad.
For lawyers, the best advantage has to be in providing to their client the best chance of certainty of optimum outcome in the shortest time frame possible at low expense. Such advantages can only enhance litigators’ reputations in the eyes of their clients securing future recommendations.
The Dubai Mediation Centre has a panel of approved and accredited mediators with a range of mediation skills applicable to disputes involving engineering, construction, property matters including ownerships, rights of way, boundary disputes, trade disputes, individual and corporate rights including intellectual property rights, wills and probate, matrimonial and family disputes maritime, aviation and mergers and acquisitions. Mediation skills include facilitative, evaluative and narrative styles of mediation that experience shows best suit commercial disputes.
Lawyers involved in litigation are encouraged to contact Natalie Dixon and her team of administrators (cases@dev.mediationcentre.biz) to discuss their options and choice of suitable mediator along with the type and style of mediation model would best suit their client’s case so as to produce an optimum outcome.
