Should the mediator be evaluative?
The role of mediation as an effective means of dispute resolution is highlighted this week as ICC’s 11th International Commercial Mediation Competition is in full swing.
Iain Roxborough of Clifford Chance, the main supporting organization of the event, asks if the mediator should be evaluative in his guest blog for ICC.
At a recent symposium in London on mediation arranged by The Chartered Institute of Arbitrators, the eighth such event, there was a vigorous debate between the speakers and the audience (most of whom were mediators) about whether mediators should be evaluative or not. It turned out that a great deal depended on what was meant by being evaluative.
No one wanted a mediator to impose his assessment of the merits like a judge descending momentarily from the bench. At the same time it was recognised that the reason why many mediators are chosen is because they are thought to already have knowledge and experience relevant to the topic in dispute and can therefore be respected and bring their experience and knowledge to bear on the discussion. Otherwise there is a risk that one side, whether intentionally or otherwise, can side-track the mediation by suggesting outcomes that any-one with experience and knowledge would dismiss as very unlikely. Why else are so many leading barristers and solicitors selected to be mediators in disputes involving speciality such as commercial litigation, employment, construction and insurance? The list of specialities is endless. Given the general freedom as to choice of mediator, but the need to reach agreement with your opponent, the mediator ultimately chosen will often be someone specialising in the relevant legal area. And, if it is an employment dispute, for example, and the parties have appointed an employment specialist as mediator, then their specialist knowledge is likely to be one reason for that appointment.
In England the courts have been eager to encourage mediations as a means to resolving disputes and reducing the burden on them. It is their eagerness and encouragement of mediations which has led many parties to engage in mediations rather than face criticism by the courts for failing to act in what is seen as a reasonable manner in trying to resolve the disputes.
In England, the courts have been eager to encourage mediations as a means to resolving disputes and reducing the burden on them. It is their eagerness and encouragement of mediations which has led many parties to engage in mediations rather than face criticism by the courts for failing to act in what is seen as a reasonable manner in trying to resolve the disputes. In English courts, adverse costs orders can be made in response to such unreasonable behaviour. As a result, English courts have some interest and influence over the manner in which mediation of court disputes is conducted.
The English courts have recently approved the Jackson ADR Handbook. (Lord Justice Jackson is a leading Court of Appeal judge who has also been tasked with trying to make the courts more cost effective and accessible). This handbook asserts that the published success rate of mediation shows that generally mediation is likely to be successful (paragraph 13.03) and that mediation can resolve disputes even if the claims have no merit, as a mediator can bring a new independent perspective to the parties if using evaluation techniques (paragraph ll.13). The approval of evaluation techniques has then been reflected in views expressed by the English courts in two reported cases, which are of interest, as they illustrate how national courts can influence the mediation process.
In PGF II SA v OMFS Company 1 Ltd  EWCA Civ 1288 it was submitted that there had been no point in mediating as the dispute settled before trial only because of a defect in the claimant’s case of which neither party had become aware until just before trial. Yet the English Court of Appeal considered that was precisely the sort of insight which a trained and skilled mediator, experienced in the relevant field, could bring to an apparently entrenched dispute and that the point would probably have emerged at a mediation. If there had been this opportunity for the point to emerge, a trial could have been avoided. The mediation was seen as an opportunity for the parties to reconsider and almost get advice in spite of themselves and their lawyers’ approach to that point. Emphasis was placed on the mediator being skilled and experienced in the relevant field.
In another dispute before the English Technology and Construction Court, Northrop Grumman Mission Systems Europe Ltd v BAE Systems (Al Diriyah C41) Ltd  EWHC 3148, the court concluded the dispute was a classic situation where a mediator could have brought the parties together. Justice Ramsay commented: “In assessing the prospects of success I do not consider that the court can merely look at the position taken by the parties. It is clear that if BAE did not want to pay anything and if NGM would not settle without payment, then there would not be a settlement. However, this is the position in many successful mediations. It ignores the ability of the mediator to find middle ground by analysing with each party its expressed position and making it reflect on that and the other parties’ position. It allows the mediator to bring the necessary skills of evaluation and facilitation to find solutions which have not been considered.”
Again, the skills of evaluation were emphasised and the benefit of mediation was seen as lying in the mediator’s ability to look beyond the polarised positions of the parties and find middle ground by analysing the parties’ positions and making each reflect on its own and the other’s position.
It was suggested at the symposium that the desire to have more evaluation was client driven and the product of client impatience with what can often be seen as slow progress in mediation discussions, where no-one directly addresses the weaknesses in the claims and defences being put forward. A process, in which discussions are facilitated most of the day and first offers are not put on the table until 4 pm on the day, is one which may not be evaluative but can also be unduly time-consuming. Given the desire of most clients and users to finish the mediation at a sensible hour, it was suggested that many think some evaluation could assist in the process and in speeding it up.
There was a discussion as to how evaluations were or could be delivered, whether directly or by implication. Comments from a mediator like: “Please talk me through that argument again. The other side is having difficulty with it.” can imply some form of evaluation. As one participant commented, whether one uses rhetorical questions or direct statements depends on the person you are dealing with and how diplomatically you deal with them, Others felt that, if the parties were stuck, it was for the mediator to help them to address the questions in order to get to a resolution, by asking coaching type questions. Implied evaluational questioning seemed to be generally accepted as a useful tool.
It was suggested that, as a rule, mediators should never evaluate at the beginning of the day and that evaluation was not the open sesame to settlement: it did not settle disputes. On a philosophical note, it was suggested that getting to the truth was not helpful, as there was no universal truth, just different perspectives and the more you focused on factual issues, the more people became wedded to their own perspective. And most parties wanted validation of their view or perspective, rather than a technical evaluation. So evaluation should be light-touched.
At the other end of the scale, form light touch evaluation was Med-arb, a combination of mediation and arbitration. This was offered as a means of providing binding evaluation as the backdrop to the mediation. The mediator would hear submissions and make a written determination of the outcome which was placed in a sealed envelope at about 11 am, to be opened at 6 pm. The mediation would then start with the parties under pressure to resolve the dispute themselves by 6 pm or face an unknown but binding decision. It was said that such mediations tended to conclude with a settlement by 4 pm and the envelope stayed closed. It was suggested that there was market interest in such approaches but others felt parties and their advisers would not want to put themselves under such pressure or to trust the mediator/arbitrator to that extent.
Mediation is eminently flexible and there are really no fixed rules. That is its attraction. And the English courts certainly do not have any power over how an international mediation is conducted. In practice, they have little power over how an English mediation is conducted. But their views as an interested but dispassionate observer bear thought and may be useful in guiding other users of mediation both in England and internationally. Clients and advisers often ask and consider whether there is a need for the mediator who is to be appointed to be a lawyer or a specialist lawyer. Sometimes the other party to the dispute will propose a mediator who is a non-lawyer or non-specialist.
In such circumstances, it may be helpful to consider the views of the English courts and those in the Jackson ADR Handbook. Others may comment that, as part of the legal establishment, the courts and their handbook are too wedded to recommending lawyers and the legal profession as mediators and that a different perspective is needed to assist both with evaluation, which is not at all the only means to achieving a resolution, and facilitation.
This article does not necessarily deal with every important topic or cover every aspect of the topics with which it deals. It is not designed to provide legal or other advice.
© Clifford Chance 2016