Effective dispute resolution comes in many forms – by John Munton, Director of Dispute Resolution Services, CEDR
One of the key strengths associated with the mediation process is its flexibility. However, in my experience very few users of mediation choose to take control and design a process around their dispute rather than the other way around. Because whilst the tried and tested one day open-ended mediation model has proved highly successful over the years, there are times when a different approach may prove to be more effective, be that a time-limited mediation day or indeed a more flexible process conducted over a number of weeks. I have seen both approaches used over the last 12 months, and for the right cases they increase the likelihood of a successful outcome.
Time limited mediation
A good example of the time-limited approach was the NHS Litigation Authority pilot scheme that CEDR administered in 2014/15. When I was working on the set up of the Pilot I have to say that I was rather sceptical, believing that a time limitation would hamper the ability of the mediator to bring the parties together over what tended to be very emotional issues. In practice, however, my concerns proved unfounded; the process proved to be very effective, settlement rates were higher than the average and user satisfaction was considerable on all sides. The same has been the case on the time-limited commercial mediation that CEDR conducts under our Low Cost Mediation (125 Scheme). This allows for a maximum of 7 hours of mediation time for a fixed cost, and again the settlement rate has been impressive. As a result, we are increasingly seeing client law firms select this model repeatedly for more modest claims.
Flexible time frames
I’ve often thought that, on more complex matters or where the parties are geographically separated by large distances, the parties should work with the mediator to agree the most effective use of the mediation window. CEDR is often named, for instance, as the mediation provider in Information & Communications Technology (ICT) contracts that allow for a mediation window of circa 6 weeks. I have noticed that, as a first step, companies in this sector want to develop an action plan with the mediator on how best to use the window most effectively. They want to ensure that the mediator is fully briefed on the issues in dispute, and understands the parties’ respective positions and any technical aspects long before the face-to-face phase of the mediation takes place.
Last year, for example, we worked on a large and complex dispute between a European ICT vendor and their South American customer. The parties used the mediation window to maximum effect with a number of online briefings and individual sessions with the mediator long before all parties travelled to London for a mediation session (London remains a very popular venue for mediations even if the dispute has little or no connection with the UK). The result was that serious negotiations got underway almost immediately the parties gathered at the mediation session, and the matter settled comfortably before the end of the day.
Think about an adaptable process
My advice to users of mediation is: don’t be afraid to talk to stakeholders, the mediator and/or the mediation provider about customising the mediation process. It could well save time and money as well as increasing the opportunities for a successful outcome.