Keep calm and carry on(line) with mediation

Whilst the civil courts adapt at short notice to working, by and large, remotely, invariably some hearings will continue for the foreseeable future to be adjourned to dates as yet unknown.  In the circumstances, it might seem inevitable, or at least tempting (especially when many parties and their solicitors are faced with the difficulties associated with unexpectedly having to work from home at the same time as home schooling children), simply to wait on the court.

Potential pitfalls of simply waiting on the Courts

By just waiting on the courts, parties and their solicitors may run some of the following risks:

• The likelihood of the courts prioritising urgent /family cases over commercial disputes.
• Existing (often significant) court backlogs obviously will be exacerbated by coronavirus-related adjournments in the longer term (possible illness and/or the need to self-isolate if members of their household display coronavirus symptoms amongst the judiciary and/or staff perhaps further reducing the courts’ ability to hear the number of claims already issued and served and those yet to be issued due to, for example, limitation, where defendants seek to take advantage and are not willing to agree to a standstill); the courts’ policy of block-listing generally being unsuitable for telephone hearings (which need to start and finish on time, despite the involvement of litigants in person).
• Likewise, witnesses unexpectedly being unable to participate in a trial due to illness. It not being a subject easy to contemplate and/or broach, but there exists the possibility some (maybe key) witnesses sadly may not survive the COVID-19 pandemic.  In such a scenario, even if a signed witness statement is available, evidence is likely to carry far less weight at trial than if it had been given orally under cross examination, this then requiring a reassessment of a claim’s prospects for ATE insurance purposes.
• Likewise, the potential unavailability of experts who have prepared reports but who, nevertheless, still will need to give oral evidence at trial necessitating the instruction of new experts (with the associated cost and/or further delay that doing so will entail).
• Delays, and their effect on evidence, possibly requiring costs budgets be reviewed, thereby giving rise to further delay and additional costs (of such costs management).
• Certain courts, at present, being willing to adjourn hearings at one party’s request, with resulting tactical delays that judicial case management ordinarily would prevent.
• Due to the economic effects of the current (and any subsequent) lockdown, defendants’ financial circumstances may be such that they are no longer worth pursuing, with all costs and disbursements incurred to date then having been wasted.
• Claimants may no longer be willing to pursue meritorious claims, especially those which it was not envisaged would be protracted, and/or able to pay their own costs.

Of course, there are some claims where the parties have no option but to resort to litigation, for example, certain test cases where a binding legal precedent is being sought from the court.

However, the majority of claims should be suitable for alternative dispute resolution (ADR), and it is anticipated the courts are likely to be more willing than ever to sanction parties who, unreasonably, prove not prepared to explore reaching a potential settlement by such means.

Certainly, the Courts will nudge clients towards ADR at every opportunity and it is something lawyers ought to broach with clients to give them some option other than ‘the long grass’.

What the Courts expect of parties and their lawyers

Practice Direction – Pre-Action Conduct and Protocols of the Civil Procedure Rules (CPR) provides (under the heading ‘Settlement and ADR’):-

8. Litigation should be a last resort. As part of a relevant pre-action protocol or this Practice Direction, the parties should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings.

9. Parties should continue to consider the possibility of reaching a settlement at all times, including after proceedings have been started. …

10. Parties may negotiate to settle a dispute or may use a form of ADR including—

(a) mediation, a third party facilitating a resolution;

(b) arbitration, a third party deciding the dispute;

(c) early neutral evaluation, a third party giving an informed opinion on the dispute; and

(d) Ombudsman schemes.

(Information on mediation and other forms of ADR is available in the Jackson ADR Handbook (available from Oxford University Press) or at—

http://www.civilmediation.justice.gov.uk

11. If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. A party’s silence in response to an invitation to participate or a refusal to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs.” (emphasis added).

It is worthy of note that standard orders being made by a number of the courts since the imposition of the lockdown contain the following reminder (or the equivalent) to the parties:-

1. As a result of the public health emergency significant delays to the conduct of these proceedings is inevitable.

2. All parties are required to (re)consider resolving some or all issues by mediation/alternative dispute resolution; a failure to do so may result in adverse costs consequences.”.

Section 14 (‘Alternative Dispute Resolution’) of Volume 2 of The White Book Service 2020 states (at paragraph 14-7+, which is only available to subscribers to the CD-ROM version and/or to the said publication on Westlaw), “Post April 2013 the court’s duty to encourage the parties to use ADR has to be interpreted in the context of the Costs Review by Jackson LJ in his Costs Review (“Review of Civil Litigation Costs: Final” … , his intense focus upon achieving proportionality between the cost of litigation and the value of that which is at stake, his conclusion that ADR was under-used and the amendments to the overriding objective in Pt 1 of the CPR relating to proportionality. The Court of Appeal in PGF II SA v OMFS Co [2013] EWCA Civ 1288 stated that the constraints which now affect the provision of state resources for the conduct of civil litigation call for an ever-increasing focus upon means of ensuring that court time, both for trial and for case management, is proportionately directed towards those disputes which really need it, with an ever-increasing responsibility thrown upon the parties to civil litigation to engage in ADR, wherever that offers a reasonable prospect of producing a just settlement at proportionate cost.  The message is that parties should seriously consider engaging in ADR without troubling the court or waiting for case management directions requiring this.  PGF II SA was followed in NJ Rickard Ltd v Holloway [2015] EWCA Civ 1631.” (emphasis added).

Don’t just eliminate the negative, accentuate the positive

However, rather than focusing upon what costs sanctions parties may face in the event they do not consider ADR, it is worthwhile instead having regard to the advantages of ADR, especially in present circumstances.  As Park Square Barristers’ Kate Wilson identified in her article entitled ‘Civil Team: Updated Guidance and Online Dispute Resolution’ that appeared on chambers’ website on 9 April 2020, “Across all jurisdictions, there is likely to be an opportunity now more than ever to explore alternative avenues of dispute resolution.  Many cases are being adjourned as a matter of course and parties are now finding that the end is no longer in sight.  Perhaps worst of all, it is unknown how long the current situation will last.”.

Why mediation works

As per the CEDR (Centre for Effective Dispute Resolution) mediator handbook:

“Mediation enables the parties to resume, or sometimes to begin, negotiations.  The presence of a mediator changes the dynamics of the negotiating process.  The mediator brings negotiating, problem-solving and communication skills to the process, and deploys them from a position of independence and neutrality, making progress possible.

The mediator, as a neutral, can:

• win the trust of all parties
• facilitate communication
• focus the parties on the problem
• overcome emotional blockages
• help each party to understand the other party’s case
• probe each party’s case in private for interests and needs
• help parties assess their own weaknesses realistically
• suggest new avenues to explore, including helping parties to create value
• help parties to overcome deadlock
• save face for parties, including when needing to change their stance
• explore settlement proposals in depth
• obtain approval for settlement proposals
• assess realistically the chances of settlement.”.

The CEDR mediator handbook continues:

“The essence of mediation, and the reason for its success, is that it offers a powerful structure … and introduces a changed dynamic into any negotiation or dispute discussion.  The mediator acts as a catalyst, being an independent neutral who is committed to helping the parties to reach settlement, but who does not have a stake in the dispute or the outcome.

This process:

• gets the right people and the right information to the table
• restores the negotiation process
• identifies and focuses on what really matters to the parties …
• separates the people from the problem …
• helps the parties to reassess their risks
• widens the options for resolution
• rebuilds or safeguards relationships, sufficient at least to progress negotiations
• leaves ownership of the problem and the settlement with the parties.”.

As is identified by the CEDR mediation handbook, “Mediation does not preclude the use of other methods of dispute resolution [including litigation], and no one loses any of their accrued rights by participating in mediation.”; “Mediation is not a waste of time and money if it fails”:

“If settlement is not reached in mediation, it is usually achieved shortly afterwards.  The settlement gap will usually be narrowed at mediation [with consequent savings to be made in court issue fees and/or the length of any trial] through the negotiations and through parties gaining a greater understanding of the other party’s case and privately reviewing their own case.  Mediation almost always tempers aspirations with realism, and movement towards settlement takes into account the risks, legal and commercial, of not settling.”.

Rather than the black and white, win or lose outcome of trial with the litigation risk it entails, by contrast, a mediation appointment represents a safe (confidential and without prejudice) environment to explore potential avenues towards settlement, including options over and above those courts have power to order, thereby possibly preserving business relationships.

A brief (and light-hearted) summary of mediation, with particular emphasis on online dispute resolution, was the subject of a PowerPoint presentation that I gave prior to the current crisis.  The slides can be found here.

Even with clients sceptical that mediation would work, it is worth noting that if some issues can be resolved, or boxed off (such as aspects of quantum subject to where other issues are decided), then trial of several days could be reduced to something more manageable and capable of remote hearing – and may, as a result, be heard sooner.

During lockdown there are many ways of conducting mediation simply and effectively.  Some of the more popular software allows breakout rooms, but a simple combination of a laptop or tablet with a browser and microphone plus a mobile or landline for ‘side discussions’ is workable and we have barristers who can assist with setting up the technology and talking clients through it.

How PSQB can assist

Chambers has a specialist team of barristers experienced in alternative dispute resolution.  Please visit the ‘Mediation’ and ‘Online Dispute Resolution’ pages for more information.

As many of us now find ourselves becoming more familiar with video conferencing software, online dispute resolution ought to be a less daunting prospect than it perhaps once was just a few weeks ago.  However, for those who may still require some reassurance, please do not hesitate to contact Andy Reeves on 0113 213 5252 or via email at andyreeves@psqb.co.uk, who can provide further details or arrange for you to speak with one of our ADR practitioners.