I offer a range of mediation options proportionate to the size and complexity of your dispute. Because I have attended (as a representing lawyer) far too many mediations which have unnecessarily gone past midnight, my preference for claims of up to £1 million is to offer time limited mediations and encourage everybody to focus on resolving the dispute in the time available. It is perfectly possible in almost all cases. However, if genuine progress is being made then more time can be agreed on the day. For claims over £1 million, given the high value, many participants prefer to not be constrained by the clock and so I offer open ended mediations only.
OPEN ENDED OR MULTIPLE DAYS MEDIATION
For some disputes it is sensible to place no time limitation, or to plan for two or more mediation days. Typically these will be complex, high value or multi-party disputes, or involve issues of great delicacy. I am always happy to advise on how these are best arranged – for example over consecutive days or with a break in the middle. Frequently a pre-mediation conference (possibly by telephone or Skype) will be necessary to plan the process.
8 HOUR TIME LIMITED MEDIATION
This is a time-limited mediation based on an 8 hour (usually 10.00am to 6.00pm) day. Experience shows that this is sufficient time to work through any difficult issues and then conclude a negotiated settlement. The vast majority of disputes are capable of being resolved in this timescale if the participants are well motivated and properly prepared. However, if time is running short but progress is being made then additional time can be agreed. The majority of my mediations follow this model.
4 HOUR TIME LIMITED MEDIATION
These are an excellent choice in many straightforward money claims where the parties and their lawyers have thoroughly prepared their risk analyses and are ready to move quickly to a negotiation. There will be very limited time to explore issues or work through emotional concerns. Preparation is the key to their success. I provide a risk analysis template to participants to help them prepare, and ask that the documents are limited to 100 pages. If real progress is being made then more time can be agreed.
90 MINUTE TELEPHONE MEDIATION
These are increasingly popular in smaller money claims where the flexibility of telephone contact can be extremely convenient, particularly where the disputants are geographically far apart or where some people have mobility problems. Again, preparation is vital, and I provide a risk analysis template and ask that documents are kept to a minimum. I generally start with a conference call with all participants, but then move to individual telephone discussions, with a final conference call to sum up the outcome. The telephone contact does not need to take place over a single session, which makes this approach very convenient for those on a busy schedule.
VIDEO CONFERENCE MEDIATION
This is an excellent and practical alternative to a face-to-face mediation using online video conferencing technology, so you don’t have to leave your own home or office. It’s ideal where there are reasons why a face-to-face mediation is unsuitable, such as disability or geographical distance. It’s great for international mediations. It can be used for half or full day mediations. I use Skype, which is free and can be downloaded here. Other than the software, all you will need is a video camera, which is built into most modern laptop computers, or any HD video camera that can be attached to your PC. Apart from the fact that the mediation takes place by video conference, everything else is just the same as in a face-to-face mediation.
E-mediation is an exciting innovation which offers great flexibility and convenience in smaller claims or where it would be disproportionate or difficult to bring the parties together. Skype is used to create secure private chat rooms where parties can post messages either to the mediator in confidence or with the other side in a chat room moderated by the mediator. Because e-mediation does not take place in real time it is not necessary to agree a time and date for the mediation and it proceeds at a pace that suits everyone. Skype is the most widely used platform for online conversations. It’s password protected and it’s is free to download here
This is a hybrid mediation-arbitration approach which is increasingly popular in the US. British lawyers tend to be cautious about new Alternative Dispute Resolution (ADR) ideas, but I strongly recommend that they give this option a try. It has great benefits for situations where both parties want a resolution to the dispute at a manageable cost, but where there may be an unbridgeable financial gap. Med-Arb guarantees a resolution, either via a collaborative settlement or a decision from an independent neutral. The parties sign up to a Med-Arb Agreement which commits them to attempt mediation, but then if the mediation is unsuccessful, to submit to binding arbitration. It works like this: I will mediate the dispute and work with the parties to achieve a settlement both sides can live with. However, if at the end of the process there is a financial gap that cannot be bridged through negotiation, the file will be passed to one of my associate and highly experienced Arbitrators (in construction cases I can act as Arbitrator as well as mediator where the parties consent) who for a fixed, pre-agreed fee will simply choose one of the parties’ final offers and prepare a short arbitration award explaining the reasons. This award will be binding and enforceable. The interesting thing about this process is that the occasions when the arbitration is needed are rare, because the knowledge that a binding arbitration will follow the mediation tends to encourage the parties to go the extra mile to get a mediated settlement.