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Using Mediation Now - Developments in Mediation & What Lawyers Need to Know

Using Mediation Now - Developments in Mediation & What Lawyers Need to Know
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In Brief

As part of CEDR’s thought leadership programme, in September 2024, a panel of Commercial mediators discussed the key developments in mediation with a focus on current trends.

This is the fourth in a series of articles, in which we will recap some of the key points that were raised in the discussion.

 

Introduction

Mediation has undergone significant developments recently, and lawyers need to stay informed to better serve their clients. This article explores key changes, such as the impact of landmark cases, mandatory mediation, and emerging international trends, as well as advice on how lawyers can enhance their mediation skills.

1. The Churchill Case and Mandatory Mediation

The 2023 Court of Appeal Churchill case marked a pivotal change in the mediation landscape making it possible for courts to mandate mediation. This shift addresses concerns that mandatory mediation would infringe on Article 6, which guarantees the right to a fair trial. However, it has become clear that mandatory mediation can be beneficial, especially considering factors like complexity, litigation costs, and the number of parties involved.

The impact of this change is already being observed, with parties opting for mediation to avoid being perceived as unreasonable by the courts, which could lead to penalties on costs. This move has also been supported by new Civil Procedure Rules, effective from October 2024, that empower courts to mandate not only mediation but other forms of dispute resolution. These developments emphasise the importance of integrating mediation into the litigation process, making it an essential aspect of resolving disputes.

2. Fixed Costs and Early Mediation

Another recent change that affects mediation is the introduction of fixed costs for claims involving damages under £100,000. This fixed-cost regime has also encouraged parties to consider mediation at an earlier stage, before filing claims, to maintain more control over the process and reduce costs.

Lawyers are encouraged to guide their clients toward mediation, as it offers a practical and effective way to resolve disputes. With new policies like mandatory free mediation sessions for small claims up to £10,000, more people are becoming aware of the benefits of mediation.

3. Should Lawyers Train as Mediators?

With mediation becoming an integral part of the litigation process, should lawyers undergo mediation training? The answer is a resounding yes. Many barristers and solicitors are taking mediation training courses to become more effective advocates for their clients during mediation. Understanding the process from both perspectives—advocate and mediator—can significantly enhance a lawyer's ability to negotiate and reach favourable outcomes.

By undergoing mediation training, lawyers can understand the nuances of the mediation process, such as when to make offers and how to utilise different stages effectively. It enables them to support their clients better and be proactive during mediation, thus improving the overall chances of success.

4. Choosing the Right Mediators

The selection of mediators is crucial to the success of mediation. There is debate about whether a mediator needs to have specific expertise in the subject matter of the dispute. In some cases, like insurance or construction disputes, having a mediator with relevant industry expertise can be advantageous. Subject matter knowledge allows mediators to understand the intricacies of the dispute and ask more insightful questions, leading to more effective mediation.

However, the core skills of facilitation and dispute resolution remain key. The importance of a mediator's ability to guide parties toward a resolution, rather than evaluating or dictating outcomes, cannot be understated. This is particularly important in building trust and maintaining neutrality throughout the process.

5. International Trends: The Singapore Mediation Convention

On the international front, the Singapore Mediation Convention has brought significant credibility to mediation as a global process. Similar to what the New York Convention did for arbitration, the Singapore Convention provides a framework for enforcing mediated settlements across borders. This development has encouraged countries that previously did not have a strong culture of mediation, such as Saudi Arabia and Qatar, to adopt mediation as a viable dispute resolution method.

The rise in international mediation has further been supported by the need for businesses to demonstrate that their jurisdictions are favourable places for resolving commercial disputes. This has led to an increased interest in mediation, especially in emerging markets.

6. Adapting Mediation Practices Post-COVID

The mediator's role in 2024 is evolving to meet greater demands for value and effectiveness. Today's mediators are increasingly using their expertise to help build solutions, fostering deeper communication, and providing a platform for constructive and future-focused discussions. It is about bringing empathy, clarity, and creativity into the process to help parties not only resolve their disputes but also find common ground that is meaningful and sustainable.

The focus is on making mediation more impactful—by spending more time, adding professional insights, and continuously engaging until an effective resolution is achieved. The goal of an effective mediator in 2024 is to not only help resolve conflicts but also ensure the resolution process adds genuine value to all parties involved for future growth.

Conclusion

The developments in mediation highlight a clear trend toward integrating mediation as a core part of dispute resolution. Lawyers can adapt by gaining mediation training, understanding the nuances of fixed-cost regimes, and being aware of international trends like the Singapore Mediation Convention. The emphasis on mandatory mediation and the growing sophistication of mediation practices offers lawyers new opportunities to achieve favourable outcomes for their clients while reducing costs and complexity.

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