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Features
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 IN RESEARCHING this piece, The Mediator contacted over 30 legal directors, company secretaries and general counsel at a range of influential public and private sector bodies to canvas their views about mediation. We asked about the ethos and ethics of mediation; the marketplace and who controls it; we asked about different styles and techniques mediators use; and we asked whether a 'mediation mindset' was something they sought in external counsel. One message was clear: nobody's excited about mediation.
Exposure to mediation is more widespread than ever, but where mediation is concerned familiarity, it seems, breeds indifference. 'There's nothing magical a mediator brings that two lawyers with the right sort of attitude, the right sort of intelligence and the right sort of common sense can't do on their own,' says one FTSE 100 General Counsel. He continues: 'If the two lawyers have those skills and a good relationship, they don't need a mediator.'
These views are typical. Another FTSE 100 legal director who had been involved in four mediations in the previous eight weeks (two settled, two didn't) is equally cynical: 'Have I settled anything through mediation that wouldn't have settled if mediation didn't exist? I can't think of anything,' he says.
The tone of weariness was remarkably consistent. It is worth questioning the value of these sources. After all, the level of understanding about mediation was by no means uniform. Some lawyers, most obviously those in the public sector, were remarkably well informed about the process; others, including those at the highest levels of the biggest companies manifestly were not. 'I don't want to mediate,' said one legal director at a household name insurer. 'Why should I be bound by a mediator's decision?' he continued.
One shouldn't be too critical: some general counsel have fundamentally misunderstood the process, but so has the Court of Appeal. And ultimately, while general counsel remain so influential in appointing external counsel and paying their hefty bills, they alone have the power to force mediation upon solicitors whose financial best interests are served by resisting the process. For this reason alone, the mediation community should take note.
Ethics
The survey yielded a number of positives for mediation. Most general counsel subscribe to the idea that not only is mediation an effective means of resolving disputes, it can also deliver justice. 'Mediation has a prospect of producing a more just result simply through the wider range of outcomes available as possible methods of resolution,' says one in-houser. Curiously, at the same time as believing mediation can deliver justice, the majority of those questioned also believe that with a crack team of mediation advocates and a carefully selected mediator it is possible to obtain a more beneficial outcome through mediation than could reasonably be expected through the courts.
Staying with some of mediation's ethic issues, several in-house counsel noted suspicions that 'certain firms, including some very well known firms' are routinely mediating in bad faith. The most frequent issue was not that the mediations are being used as fishing trips - this issue appears to have cooled somewhat - but that firm-wide policy appeared to be: 'turn up so the court can't accuse you of refusing to mediate then stonewall for as long as it takes to break up the mediation.' Few mediators, they suggest, have sufficient on-going contact with individual firms to discern this pattern of conduct.
The market
We asked in-housers who decides whether or not a particular dispute is suitable for mediation. Answers followed no single pattern. In some organisations, the general counsel made the decision; in an equal number external counsel advised. No surprises there. More noteworthy was the fact that the question was seldom asked. Meditation, it seems, has yet to find a place on the dispute resolution assembly line.
Mediator selection proved a contentious issue. With almost all interviewees having had some direct experience of mediation, all agree that the choice of mediator is critical. That said, the prevailing view was that the market was seriously over-supplied and outside the top 20% few had, or deserved, any work. The proportions reflect the long-held view of the Bar where it has been noted that there are 12,000 barristers with enough work for 6,000, done by 2,000. If the analogy with the Bar is valid, then perhaps talk of a crisis is premature.
One final point which might affect mediation's future growth is the fact that private practice lawyers stand to lose out financially from the rise of mediation. Optimists nevertheless have clung to the notion that companies will reward mediation-friendly firms with more work as a result of their speedy and effective disposal of disputes. None of the in-housers we spoke to in the course of this survey had considered making attitudes towards mediation part of their selection criteria.
Mediators' styles and approach
Having learned that most general counsel consider selection of the right mediator critical, it inevitably follows that their harshest judgements, and damning criticism should be reserved for the mediators themselves. Among the positives, though, was specialist knowledge -either technical or legal. Mediators have, for the most part, held themselves out as specialists in mediation; end-users, however, are very keen on specialisms. Not only do they want someone who can talk their language, they view the ability to pick a specialist as one of mediation's key strengths. 'It's about choice,' says one general counsel, 'it's having your pick of a private sector tribunal. It's a huge advantage. It's BUPA compared to the NHS.'
But there, it seems, the positives end. The weariness with which many in-housers greet the topic of mediation relates directly to their experience of mediations. Among the first observations the weary are keen to make is that the gulf between the reality of the process and the lofty ideals espoused in lectures and seminars is significant and risks undermining the credibility of mediation.
Top of the list of issues which invite scorn is perceived weakness on the part of the mediator. Giving palpable nonsense and well documented fact equal air-time in the interests of appearing open-minded has backfired for a number of mediators. 'It can be frustrating where they [the mediator] can see the irrationality of the other party, how their claims and positions are unsubstantiated, and choose to ignore it,' says Frank Aghovia, legal adviser at Exel Plc. He continues, 'It's like saying, "I know he's talking out of his backside, but can you give him what he wants anyway." He concludes that 'steadfast neutrality is irritating and wastes time.'
One public sector lawyer, though generally more favourably disposed towards mediation, shares a sense of frustration with the purely facilitative model: 'If a mediator is too passive,' he says, 'there isn't going to be any realignment of expectations, there isn't going to be the refocusing of the parties on the strengths and weaknesses of their own and the other party's case. It's simply not going to happen. You're not going to facilitate the movement.'
Naturally it is all a question of degree, but frustration with a style perceived to be 'slow', 'wet', 'namby-pamby', or worse, 'like therapy' is real, and stands in the way of mediation increasing its meagre market share.
It is also evident that some mediators have failed to manage the process with sufficient vigour, fuelling comments like 'I've been at quite a few [mediations] and question what the mediator actually does.' No doubt they've had to spend all their time working with the other side, but if so, this needs to be communicated.
This lack of robustness which for many is synonymous with mediation has bred the widespread belief that mediation only works when both sides want to mediate. And where that's the case, without prejudice discussions will do the job. Until mediation's image hardens to the point where people realise that great mediators can deal with the shirty, dismissive and gratuitously rude types, mediation will remain in the shadows.
Whatever challenges mediation has to face now, none are as great as those the civil justice system faces. If mediation is problematic, and at times dull and difficult, litigation is worse. For many it is simply not worth discussing. 'Respectable companies basically don't litigate against each other,' says Robert Webb QC, BA's General Counsel since 1998. 'We've hardly litigated at BA since I got here,' he says. 'Why would we?'
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