This is a blog post relating to the development of mediation in civil / commercial litigation.
Following in the path, post-Churchill (Churchill v Merthyr Tydfil [2023]), it will soon become a requirement to mediate as a pre-requisite to bring a small claim in the courts of England and Wales.
Civil Mediation 'As It Could Be' -vs- The Family Law Structure 'As It Is'.
This is not big news amongst family law practitioners who have long practiced in a structured culture of mediation in the jurisdictions of children as well as financial matters.
To recap: First there is a MIAM (A mediation information assessment meeting). The parties can meet, or else liaise with a mediator on a one-to-one/shuttle basis.
Many issues are resolved this way, SO LONG AS BOTH PARTIES ARE ENGAGED AND MINDED TO DO SO. My capitalised emphasis will become apparent, below.
If agreement is not reached, a certificate is signed to confirm an unsuccessful MIAM, and only then can parties proceed to court.
Yes. There are exceptions to the MIAM route, when for example there is domestic violence involved, it would be unfair upon the victim to engage through this medium, with their aggressor.
In family financial matters, there are two hearings, both held before a judge as mediator, ensuring there is sufficient information between them for a decision to be made, (and if not, directions are given to ensure full financial disclosure between them). If a judge has all the ingredients of the matrimonial estate, the learned judge will give their comments and observations as to how a judge at a final hearing might split the estate. If this fails, a case goes to a final hearing, and a judge will make a decision one way or another.
Before the Courtroom: Mediation will be the First Step in Small Claims.
It has been established in civil litigation that the courts should actively direct the parties to mediate, or else enter into a form of alternative dispute resolution. In small claims, where mediation occurs, it is hoped that many a complaint can be resolved through an independent mediator. If successful, and I hope that it is, this will free up much needed time in the court timetables.
Mastering Your Emotions: How Emotional Intelligence Impacts Mediation Approaches and Outcomes.
However, applying emotional intelligence to the fray, just because a court directs or requests that parties seek to mediate, does not necessarily mean that they are emotionally in the right frame of mind to do so.
Resolution, a group of family lawyers and other professionals committed to the constructive resolution of family disputes, they have long advocated that timing of mediation is dependent upon the emotional state of a party, comparing the divorce process to the loss of a close relative, and the seven stages of grief being:
- Shock and denial.
- Pain and guilt.
- Anger and bargaining.
- Depression
- The upward turn.
- Reconstruction and working through.
- Acceptance and hope.
At any particular time, one party may not be at the same stage as the other party. It would be a hard negotiation if one party is at the anger stage, whilst the other party is at the acceptance and hope, stage. One would find the other nauseating no doubt, and many lawyers fuel those emotions, rather than to take a pragmatic and professional stance.
Costs Are the Reality Check for Pause, Contemplation and Reflection.
There is one issue, possibly, that seeks to bring all parties to a resounding reality, being costs. When all is said and done, and much time and legal costs are spent arguing one way or another, where is there a time for pause and contemplation and reflection?
In the fog and friction of a litigious battle, where does one pause for thought? Where is the ‘modest stillness and humility’, that Shakespeare refers to upon peace? “In peace, there’s nothing so becomes a man as modest stillness and humility”.
I would advocate a two-stage reflective stay, to allow the parties to explore the possibility of compromise.
Firstly, before commencing any proceedings in any jurisdiction in the courts of England and Wales, and secondly, at the Costs and Case Management Conference stage of civil proceedings, a mandatory 28-day stay, irrespective of emotional intelligence of the parties.
Only at that stage, does one get a true notion of the costs expended by each party, and the likely future costs to be expended if the matter goes to trial. Only then, does it really become a reality that a losing party generally must pay their own costs as well as the costs of the other side. That in itself should be a most sobering wake-up call for any litigator. Indeed, for any rational player, commercial-common sense of costs and risks, should overtake the emotion of the battle.
Before, the naysayers commence their response that some parties do not want compromise, and want to have their day in court, the courts are rapidly appreciating that irrespective of the concrete case they have, that they are sure to win, that is not necessarily so. The best evidence can be bodged upon cross-examination. Witnesses may not turn up or make a rotten mess of things. A better advocate may be able to persuade a judge as to their client’s irresistibility of claim or defence as the case may be.
There is always a risk that you will not get what you want in court. There is always a risk that you will not recover all or any of your costs, and that decision is a matter of discretion for the courts. Logically, mediation is a necessary exercise to be pursued by both parties with sensible legal advice.
Professor Rosen is a solicitor-advocate in practice and principal of David Rosen & Co. He has over 25 years of experience in litigation of all types and complexities ranging from a simple neighbour dispute, to defending a multi-national company against a Sovereign State. That level of experience makes him a cool-headed mediator, having taken part or else managed mediation for decades, knowing only too well the costs and risks involved of litigation, and the uncertainty of cases generally decided at the court’s discretion. His main strength is perspicacity: an ability to understand issues and people quickly.
