From Property Specialist to Mediation Expert: A Career Journey

From Property Specialist to Mediation Expert: A Career Journey

I witnessed the horrendous stress costs and complexities of litigation early in my career I experienced this even more personally in the early 1990’s as a father not being able to see his firstborn son and having to go through High Court litigation and the probation service (pre CAFCASS). I resolved professionally to explore other options. Firstly, I turned to arbitration and took an evening course in the City of London. I became an Associate member of the Institute of Arbitrators. Unfortunately, I did not pass the final award exam either in London or Singapore so was unable to become an Arbitrator! My interest in ADR never left me. Therefore, when I started a family law practice, I turned to family mediation as I perceived this was a far better way to sort out child arrangements and the splitting of assets on divorce than the Family Courts. 5 years later in 2019 I qualified as a Civil and Commercial mediator including Workplace and Employment in 2020.

What is the role of the mediator and how is the mediator appointed?

Fundamentally a mediator must be a neutral and independent professional. Mediators wear many hats as follows:

1. The mediator is a “friend” to all; he/she must build a relationship of trust with the participants quickly and effectively.

2. A negotiator – must use the information provided in the best and most positive way in helping parties to shape and settle the best deal possible as realistic and that will stick.

3. A communicator – bringing clarity to an often confused and deadlock situation and helping participants to speak with each other in a safe environment.

4. A manager – orchestrate the day in the most efficient way helping participants to make the best of the opportunity.

There are three main ways of being appointed:
•  direcly;
•  through a provider; or
•  by a court or other scheme, e.g. Civil Mediation Council (“CMC”)

How has mediation positively impacted the resolution of both civil and commercial disputes?

Firstly, mediation is quicker, cheaper, and less stressful and time-consuming litigation. Secondly, mediation is more flexible than litigation in terms of potential outcomes. Thirdly, mediation is less likely to be harmful to the long-term relationship between the parties. Fourthly, mediation is conducted privately under less pressure and less artificial circumstances than a court hearing. Fifthly, it is far more likely that both parties will emerge as winners or at least neither party will emerge as a disgruntled “loser.”

Mediation is particularly attractive to resolve civil and commercial disputes when litigation is becoming ever more expensive and time-consuming, when the law is getting increasingly complex, when legal aid is ever more attenuated, and when court fees are being increased markedly. Mediation is a great method for ordinary people to have access to justice given these factors. The great majority of mediation. are successful. CMC confirms “that 75 – 80% of cases settle on the day of mediation itself and another 10 to 15% settle shortly after.”

For which cases is mediation appropriate and how does mediation fit into litigation and arbitration?

The bulk of personal injury cases settle without the need for formal mediation. However, I cannot think of a dispute that is unsuitable to be mediated. Mediation per se does not fit into either litigation or arbitration because it is a form of ADR.

Mediation is far better than litigation or arbitration because it means that you have control over the outcome rather other than a stranger imposing a decision that means one party wins, the other party loses. Life is not like that, not black or white but all shades in between. People see the same facts and events through different eyes, for a whole range of different reasons; to put someone who does not know the parties, or the circumstances, into a position of deciding the winner cannot be fair.

Mediation allows the parties to be in control of the outcome, to find a solution that is anywhere on the spectrum. That solution can consider a whole number of matters that the judge or arbitrator cannot-e.g. personal and commercial circumstances relationships, future business, ability to pay, settlements in kind and so on. The participants decide, and that must be more just than a stranger imposing a judgement in favour of one or the other.

What is the procedure in mediation?

Firstly, upon the mediator being appointed the mediator will send a standard Agreement to Mediate. This addresses the confidentiality of the matter and should be signed by all participants. The mediator should then request a summary from each participant of the dispute; the mediator does not need all the files of papers to help participants get to a deal. It is usually helpful to have an agreed bundle. Occasionally there is a pre-mediation meeting. At the first open session there should be information exchanged.

The mediator may use CAVNNN.

Meaning

•  Confidentiality
•  Authority to settle from participants/remote
•  Voluntary attendance
•  Neutrality
•  No impose settlement-participants decide. Mediator does not advise.
•  Non-binding

The mediator will then deal with matters such as time (idle /constraints), refreshments, time table etc to the end of the day. Then follow opening statements/telling the stories with mediator stimulating dialogue and using the flip chart.

There then follows the exploring stage/negotiating stage and concluding stage.

Sessions can be open with all participants or closed i.e. only one participant.

What type of civil and commercial mediation cases have you been involved with?

I have been involved in housing disrepair issues between a London Borough and tenants, inheritance issues between four siblings following the death of their wealthy mother, a Tolata case between mother and son, clinical negligence disputes, employment and workplace disputes, rent arrears or termination of tenancy disputes, personal injury claims, and both domestic and landlord and tenant property disputes.

Often, I find in London the participants are from different countries and rarely from the United Kingdom. Having lived and worked both in Singapore and France and advised many foreign clients I can appreciate that different nationals have a different approach to negotiation and often a different cultural attitude to the mediation process.

Also having been an employer and an employee for decades this does give me a useful knowledge of the workplace. My background as a property and litigation solicitor for 30 years is also very helpful when it comes to helping conclude negotiations in mediations.

What is remote mediation and is the process /results the same as traditional mediation?

Remote mediation is a process of mediating online through computer software or by telephone. Remote mediation could take place on many different platforms. It gives the mediator, and the participants maximum flexibility and is also proven to reduce stress and anxiety in attending mediation in this way. One of the main benefits of remote mediation is a reduction in travel and all participants having to meet in one geographical location. One of the biggest challenges is embracing the technology used to access remote mediation. The Society of Mediators have published a helpful Guide to Remote mediation using Zoom and similar software in February this year.

Since the beginning of Covid I have been using Zoom which is excellent and has a very helpful page on getting started. You can learn how to use the Zoom desktop or mobile client; there are many helpful learning tutorials on Zoom to help you get the most out of using Zoom. You do not need a Zoom account to use Zoom as a participant.

I find that my fellow members of the Society of Mediators use Zoom, and we started a mutual self-help group in Covid to help us get to grips with this technology.

It really is user-friendly and if I can use it, I am sure all the readers of this article can do the same! Mediators can create virtual private rooms including breakout rooms. A great deal of our training as mediators with the Society is done in this way.

Of course, the process is impersonal, but one can successfully conclude a mediation in a similar way as the traditional in person method.

Personally, I do much prefer to  use all my senses in person with participants. However, where a participant is many miles away or incapacitated or abroad then a Zoom mediation has much to commend it. There are of course other remote methods such as Microsoft Teams if one prefers. Using WhatsApp encrypted is also a great free method of communicating on the phone.

What are some of the common challenges faced in mediation, and how to address them?

Bias could be a problem because an individual may or may not be aware of their biases. Neutrality is the core concept of mediation- it is a challenge for most mediators. Personally, to be aware of bias I seek feedback from the participants and as many people as I have regular contact with including family. I do my best to accept the feedback.

Mindfulness

A mediator needs to concentrate not only on the words being used by the participants but also the meaning which is mentally taxing and requires concentration. This is why it is beneficial to work in short sessions often of not more than an hour. The brain consumes oxygen and glucose to maintain high levels of attention and concentration. I encourage breaks to help focus, be alert, pay attention, remain neutral and suspend judgement. Increasing mindfulness requires reflection and training.