19/04/2017 Attending my first mediation

Attending my first mediation

Recently I accompanied one of the more senior lawyers in my team to a mediation.

Mediation is a form of alternative dispute resolution (ADR) used in a wide range of different types of legal dispute. The process takes the form of a meeting with a neutral third party, the mediator, who helps the parties to resolve the claim. If an agreement is reached, this can be made binding, but if the matter cannot be settled then the litigation process can continue and the case eventually may end up going to court.

Mediation is a useful stage of litigation as it can help to reach a resolution without the expense, stress, time and risk of going to court. The fact that both parties have agreed to attend the mediation in the first place is a good sign, as it indicates that they believe some compromise can be achieved at least in principle.

The mediation I attended was to help resolve a dispute between siblings over their late father's will. One of the siblings had inherited everything while the other (our client) alleged that the will was invalid as their father had been very unwell when making it and had died shortly afterwards. Our client also wanted to bring a claim for maintenance under the Inheritance (Provision for Family and Dependants) Act 1975 should the will validity claim fail. The other party contended that the will was valid and did not wish to share the inheritance with the other sibling.

The day began at 9:00am in the firm's London office meeting rooms. Our client, my colleague and I took one room, the mediator took another and the other party and his solicitor took a third room. This arrangement was kept throughout the day and so the clients did not bump into each other at all. With disputes between family members, emotions often run high and so this was a helpful measure to make sure that the mediation was not derailed. The mediator was a barrister who had read through the bundle of documents relevant to the matter, but had no prior connection with either party and could so remain neutral. She met with each party in turn to introduce the purpose of the day and then gave us some space to discuss how the clients wanted to proceed.

Either party can begin the mediation by making an offer of a sum of money that they would be willing to give or accept to settle the matter. The mediator then communicates this to the other side who can either accept or make a counter offer. In our case, our first offer was almost £500,000 higher than the other party's offer. However, throughout the day and with some advice from the mediator, the offers got closer together and a number of smaller matters relating to specific chattels were resolved along the way. 

Some mediations last well into the small hours, while others are unsuccessful and one or both parties will decide to give up and leave. In our case, by 8:00pm, the matter had settled and both parties signed an order to ensure that the agreement would be binding. Neither side felt that they had 'won' as both had compromised a great deal, but it was a relief for them to know that the matter was now coming to a close and that they had avoided the great risk of losing the claim completely in court.

If you have the opportunity to attend a mediation during your training contract I would definitely recommend it. Watching the negotiations is fantastic experience, both for your legal career and for when you may need to negotiate in other parts of life. It also allows you to spend a great deal of time with your client (when else would you spend all day with one client?) and so practise your client care skills. You will probably also get a free lunch!

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