Mediation and ADR in practice – types of ADR and how to decide between themRound table meetings:nature ofRound table meetingsAlternative dispute resolutionRound table meetingsAlternative dispute resolutionRound table meetings:mediation distinguishedRound table meetingsAlternative dispute resolutionRound table meetingsAlternative dispute resolutionRound table meetings:questions to be addressedRound table meetingsAlternative dispute resolutionRound table meetings:disadvantagesRound table meetings:advantagesRound table meetingsMediation:round table meetings distinguishedAlternative dispute resolutionRound table meetings:disadvantagesRound table meetings:advantagesRound table meetingsAlternative dispute resolutionRound table meetings:disadvantagesRound table meetings:advantagesRound table meetingsAlternative dispute resolutionRound table meetings:disadvantagesRound table meetings:advantagesRound table meetingsAlternative dispute resolutionMediation:alternative dispute resolutionMediationAlternative dispute resolutionMediation:formsMediation:characteristicsMediation:alternative dispute resolutionMediationAlternative dispute resolutionMediation:mediator, role ofMediation:alternative dispute resolutionMediationAlternative dispute resolutionMediation:practicalitiesMediation:alternative dispute resolutionMediationAlternative dispute resolutionMediation:practicalitiesMediation:alternative dispute resolutionMediationAlternative dispute resolutionMediation:finding a mediatorMediation:alternative dispute resolutionMediationAlternative dispute resolutionMediation:finding a mediatorMediation:alternative dispute resolutionMediationAlternative dispute resolutionMediation:preparation forMediation:alternative dispute resolutionMediationAlternative dispute resolutionMediation:preparation forMediation:alternative dispute resolutionMediationAlternative dispute resolutionMediation:preparation forMediation:alternative dispute resolutionMediationAlternative dispute resolutionMediation:preparation forMediation:alternative dispute resolutionMediationAlternative dispute resolutionMediation:preparation forMediation:alternative dispute resolutionMediationAlternative dispute resolutionMediation:processMediation:alternative dispute resolutionMediationAlternative dispute resolutionMediation:processMediation:alternative dispute resolutionMediationAlternative dispute resolutionMediation:processMediation:alternative dispute resolutionMediationAlternative dispute resolutionMediation:processMediation:alternative dispute resolutionMediationAlternative dispute resolutionMediation:processMediation:alternative dispute resolutionMediationAlternative dispute resolutionMediation:processMediation:alternative dispute resolutionMediationAlternative dispute resolutionMediation:processMediation:alternative dispute resolutionMediationAlternative dispute resolution
Round table meetings
What they are and how they work
19.17Round table meetings (RTMs) are often suggested by parties, or sometimes by judges of their own motion. An RTM is a meeting which would usually take place away from a court setting. RTMs are sometimes hosted by legal advisers or barristers’ chambers. They may take place in local authority offices.
19.18Standard directions will often include a provision encouraging the parties to take part in a RTM and will sometimes specify when it should take place and who is responsible for convening the meeting, arranging minutes and preparing an agreed note. If an expert is to attend the RTM it is prudent to include provision for the expert’s fees in the order. The Court of Protection Handbook website includes (as part of a wider precedent directions order for welfare cases) a precedent set of directions for a RTM: see www.courtofprotection handbook.com.
19.19The difference between an RTM and a mediation is that an RTM is not facilitated by an external mediator. In welfare cases, an RTM is often chaired by the solicitor or barrister acting for P. The rationale behind this is that they are more likely to be seen as neutral than the other parties and to ensure that P’s interests are central.
19.20An RTM will usually involve the parties and their legal advisers. In some cases independent experts attend as well. In most cases solicitors rather than barristers will attend the meeting with their clients, and everyone attending will be present during the meeting. It is often prudent to ascertain if, in addition to the room where the meeting is taking place, any other rooms are available so that confidential discussions between lawyers and their clients can take place and to provide some space if any participant needs a break from the meeting. These rooms are sometimes described as ‘breakout rooms’.
19.21There are no rules governing the conduct of RTMs, so it is essential before such a meeting starts for the participants to address their minds to the following questions:
•Will the discussions be confidential, or can they be referred to in the litigation? If the latter, how will the contents of the meeting be recorded?
•What is the status of any agreement reached at the RTM?
•Who is going to attend the meeting?
•Who is going to chair the meeting?
•What will be on the agenda?
•At what point will the RTM be abandoned?
•Will the venue be suitable? Will there be enough space and is there a ‘breakout room’ for confidential discussions?
Advantages and disadvantages
19.22RTMs can be arranged more quickly than formal mediation. They are cheaper as there are no mediation fees. It can often be productive to suggest an RTM at the every early stages of a dispute, perhaps in pre-action correspondence. A dispute between a family member and social work staff may have become entrenched. Sometimes the involvement of lawyers, both for the family member and the statutory body, can help the clients narrow the issues and an RTM at this stage may obviate the need for litigation at all.
19.23As with all forms of ADR, one advantage of an RTM is it can allow the parties to reach an outcome which could not be achieved through litigation alone – for example, an apology.
19.24The potential disadvantage at this early stage may be that it is unlikely that P will be represented, and thus it will be difficult to ensure P’s effective participation. As we have seen above, the Code suggests that P might be supported by an advocate during mediation, and the same solution might then be used. This may, however, result in two parties to a dispute – for example, the local authority and statutory services – being legally represented at an RTM, while P remains without legal advice.
19.25RTMs will be challenging if there is a particularly difficult relationship between two or more parties, as they tend to involve the participation of all the parties. Not all lawyers feel comfortable chairing RTMs, and the lawyer may be seen as less objective than an external mediator because the lawyer may already have had to express a view on important issues on an interim basis which may have been unpopular with one or more of the parties.
Mediation
19.26This section provides a very basic summary of what mediation is, and then looks at the issues arising when mediating Court of Protection cases. Readers interested in learning more about mediation are recommended to read
Making mediation work for you,
1Kate Aubrey-Johnson with Helen Curtis, Making mediation work for you, LAG, 2012. on which this section draws.
What mediation is
19.27Mediation can take various different forms, but all mediations share the following characteristics:
•An independent mediator is used to facilitate the process.
•Mediation is confidential (though there are some exceptions) – the aim is that this encourages parties to be open and flexible. What one party says to the mediator will not be disclosed to the other without permission.
•Mediation is ‘without prejudice’ – the discussions which take place cannot be referred to in litigation.
•Mediation is a voluntary process – parties cannot be forced to mediate.
•Mediation is non-binding in that the parties are not obliged to reach agreement.
•If the mediation results in agreement, this can be recorded in the form of a legally binding agreement.
19.28The involvement of an independent trained mediator can bring benefits to a case where the parties may find it difficult to see solutions. A skilled mediator will try to identify the parties’ real interests in the case, which can be masked by the parties’ stated positions. The mediator will try to draw out areas of common interest between the parties, which can generate solutions.
Practicalities
19.29Although mediation may obviate the need for a contested hearing if it is successful and may therefore save money, it is not a cheap option, and it is important to anticipate the likely cost and make arrangements about how this is to be met. A mediator will require the parties and/or their representatives to sign and agreement to mediate, and this will include details as to how the mediator’s costs will be met.
19.30The mediator’s fees are usually shared by the parties who are mediating. If any of the parties are legally aided, then the mediator’s fees will be a disbursement on the certificate or Legal Help form. Prior authority should be sought from the Legal Aid Authority (LAA) (see chapter 6). Advisers should ensure that they have identified all the potential costs of the mediation. These may, for example, include room hire; whether the length of the mediation has been under-estimated; or it may have been suggested that any experts who have reported should also attend the mediation.
Finding a mediator
19.31Finding a mediator who will be able to conduct an effective mediation in a Court of Protection case can be daunting. There are different types of mediator, reflecting the different specialist areas of mediation – civil, family, workplace and community mediators. There is no single body which regulates mediators. Family mediators are accredited by organisations which belong to the Family Mediation Council. The Civil Mediation Council (CMC) accredits mediation providers, who must have a panel of at least six mediation providers who can show that they meet the CMC’s accreditation standards. Thus, individual mediators will not themselves be accredited by the CMC. The Ministry of Justice maintains a directory of mediators accredited by the CMC which can be searched by geographical area. Individual mediators will be accredited if they have been trained by a body recognised by the CMC.
2http://civilmediation.justice.gov.uk. The Law Society has an accreditation scheme for civil and commercial mediators.
3See: www.lawsociety.org.uk.19.32In addition to checking the mediator’s accreditation, it is advisable to ask to see their CV and ask about the cases they have taken on.
Preparation for the mediation
19.33For those who have proposed mediation or responded to a suggestion by the court or another party, it is essential to consider what to expect from the mediation. Advisers will need to have a clear grasp of the strengths and weaknesses of the client’s case. Perhaps for this reason, many Court of Protection mediations take place after the receipt of experts’ reports, if these are being used. This is an ideal time to take stock of the evidence as it now stands, in as objective a way as possible. This may be difficult because of the highly charged atmosphere that can develop in Court of Protection disputes, especially in cases involving a relationship between family carers and statutory bodies, which may have been deteriorating over a number of years before matters come to a head and proceedings are issued. Advisers may find it helpful to underline to their clients the potential benefit of the involvement of a neutral mediator who will not take sides. A neutral mediator should manage the mediation process in such a way that parties can adopt a fresh perspective on the strengths and weaknesses of their case without losing face. Perceptions can shift in the course of mediation which can help parties move from their initial stated position to something more flexible.
19.34In anticipation of the mediation the following issues should be considered:
•Assuming that new evidence (especially in the form of expert reports) has been received, what if any impact have this evidence had on the views and positions of the parties?
•Advisers should explore with their clients as neutrally as possible whether there are any concessions which the client feels they could offer which might promote an agreement. These might be matters that could not be achieved through litigation alone. This could include eg an apology; an agreement to make a gift in kind; or an agreement to work with the other parties in a different manner in the future. Possible concessions that might be sought from the other parties should also be considered.
•It is important to evaluate in the light of the evidence what the client can realistically achieve in the litigation. If mediation fails to deliver an agreement, what is the likely outcome of a contested hearing? If an adviser’s client is legally aided, is there any risk that the client’s legal aid will be not be extended to cover a contested hearing if mediation fails?
•Is there any reason (on an objective evaluation) to believe that any of the other parties have not agreed to mediate in good faith?
•The potential benefits to mediation should be weighed, even if it is unlikely to deliver a full resolution: might it narrow the issues or at least improve the parties’ ability to communicate?
•With this point in mind, advisers are encouraged to manage their clients’ expectations.
•Practicalities – will the parties agree to sit in the same room for all or any of the process?
•In the civil sphere, an unreasonable refusal to mediate can give rise to costs sanctions: see
Halsey v Milton Keynes NHS Trust.
4[2004] EWCA Civ 576, [2004] 1 WLR 3002. The costs implication of a refusal to mediate in the Court of Protection sphere is considered at para 16.17.
19.35It is not always necessary for the mediator to be provided with all the papers filed in a given case. However the mediator may need to see at least some of the documents from the Court of Protection proceedings. Before mediating the parties will need to agree the contents of a bundle of core documents for the mediator. The court will need to give permission to disclose this information to the mediator. This could be the subject of an application on COP9, usually by consent.
19.36The mediator may wish to speak to the parties or their legal advisers in advance of the mediation. This can be a useful opportunity to agree the procedure to be followed and can make attending the mediation itself less daunting. Some mediators invite the parties to prepare a short position statement or make a short opening statement at the beginning of the process. Where parties feel unable to be in the same room, this can be delivered between the legal representatives and then shared with their respective clients in private rooms.
19.37It is highly likely that the mediator will ask the parties to sign an agreement to mediate in advance of the mediation. The contents of this will vary but the agreement will probably contain the following provisions:
•who is responsible for the mediator’s fees and when these will be paid;
•confirmation that the parties have agreed to mediate voluntarily;
•confidentiality, perhaps with a provision that nothing said during the mediation will be referred to in the litigation;
•any ground rules the mediator considers necessary, including the discretion to end the mediation;
•a requirement that whoever attends on behalf of the parties has authority to settle.
The mediation process
19.38Mediation is a flexible process which can be designed to fit the needs of the parties involved. Many mediations will commence with a plenary meeting, where all the parties gather in one room and where the mediator will introduce him or herself and explain the procedure to be followed. Opening statements may be made during this session. Typically, after this the parties will then retreat to separate rooms, while the mediator speaks to them in turn. This can take time, and mediation can often seem to involve a considerable amount of waiting to hear how the other party has responded or what the other party may propose.
19.39The mediator will seek to establish the parties’ core interests to explore potential common ground which may provide an opening for agreement. The mediator may want to explore how one party would react in the event that a particular concession is made by one of the parties.
19.40Court of Protection cases can pose particular challenges. P’s interests need to remain central to the process. If P is a party, he or she will have a litigation friend who is likely to be present (or be represented) at the mediation. The litigation friend should make every attempt to ascertain P’s wishes and feelings on the issues which are being mediated. By definition, P is unlikely to be able to take part in the process of compromise and give-and-take that may be involved in mediation. It is the mediator’s role to ensure that P remains the focus of the mediation and to reduce the time spent disproportionately on satellite issues which may be considered important by the other parties.
19.41The second difficulty is that Court of Protection cases will frequently involve an imbalance of power between the parties, as they may typically involve a dispute between a statutory body and one or more individuals. It is suggested that this requires the mediator to satisfy him or herself that even though one party may be in a much stronger position, that party remains willing genuinely to consider an element of compromise.
19.42An experienced mediator should be alert to both these issues.
19.43If agreement is reached, the agreement should be put in writing. In the authors’ experience, this is usually done by the legal advisers. This needs to be done with care. Once proceedings have started, the court will need to approve any agreement before it is fully binding. However, it is undesirable to be in the position of resiling from a signed mediation agreement. It is absolutely essential that there is sufficient time, even at the end of what may have been a long day, for advisers to satisfy themselves that their client fully understands, and is willing to comply with, the mediation agreement. If a party needs, for example, to consider their position overnight, see if this can be agreed.
19.44If the mediation is successful, then the mediation agreement should be approved by the judge, who will need to be satisfied that the outcome is one that can properly be said to be in the best interests of P.