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20 11-13 ncm best practice imaw 2020

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Chris Makin discusses mediation best practices in his presentation for International Mediation Awareness Week.

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20 11-13 ncm best practice imaw 2020

  1. 1. Best Practice in Mediation A presentation by Chris Makin FCA FCMI FAE QDR MCIArb For International Mediation Awareness Week (IMAW) www.imaw.org
  2. 2. Today’s speaker • Chartered accountant since 1969 • Sole practitioner then partner in national & international firms, 1971 to 2003 • Freelance practitioner since then: forensic accountancy, expert witness, mediation and expert determination • General practice up to 1989 – accounts, audits, tax returns, boring stuff! • Forensic accountant since 1989, mediator since 1998, accredited ED since 2009 (though done EDs since 1995) • Done 115 mediations with 80% settlement rate • Topics: partnership, director, share valuation, company sale & purchase, Section 994, construction, rights of way & boundaries, defamation, intellectual property, professional negligence, business interruption, housing disrepair, legal costs, employment & many kinds of contract disputes
  3. 3. Who are you? • An individual or business with a dispute or potential dispute? • A lawyer or other professional who may represent clients at a mediation? • A new or experienced mediator? • Or someone with a quiet Friday afternoon to kill? Just joking! • I don’t have all the answers, but hopefully we will all learn something from this session.
  4. 4. Is mediation the best way of resolving the problem? • Do you need to establish a precedent? • Would arbitration or expert determination satisfy the need for a confidential but binding decision? • Is the other party totally uncooperative? • Note Halsey –v- Milton Keynes NHS Trust [2004] EWCA Civ 576 – onus on those refusing mediation to justify – or costs • See words of encouragement from the Bench
  5. 5. Judges press for mediation • Sir Alan Ward gave some superb judgments – see my website at https://chrismakin.co.uk/the-bon-mots-of- sir-alan/. • Or this from Sir Alan, from Wright v Michael Wright Supplies Ltd [2013] EWCA Civ 234: “You may be able to drag the horse (a mule offers a better metaphor) to water, but you cannot force the wretched animal to drink if it stubbornly resists. I suppose you can make it run around the litigation course so vigorously that in a muck sweat it will find the mediation trough more friendly and desirable. But none of that provides the real answer. Perhaps, therefore, it is time to review the rule in Halsey v Milton Keynes General NHS Trust.”
  6. 6. More from Sir Alan Ward – just for fun! Use a mediator to avoid hell “Not all neighbours are from hell. They may simply occupy the land of bigotry. There may be no escape from hell but the boundaries of bigotry can with tact be changed by the cutting edge of reasonableness skilfully applied by a trained mediator. Give and take is often better than all or nothing.” Warring bankers “This case involves a number of – and here I must not fall into Dr Spooner’s error – warring bankers.”
  7. 7. It’s time to choose a mediator – so where? • Google “mediator UK” and you will be spoiled for choice. • Essential to choose one approved by Civil Mediation Council – “CMC Registered”. • Do NOT be persuaded that for a dispute with aspects of law you need a QC, for property matters you need an ARICS, etc. A mediator is trained to be a mediator, a suggester of novel solutions, a good listener, sort of a social worker! • Approved lists are kept by https://civilmediation.org/, https://www.mediatornetwork.org/, https://academyofexperts.org/, https://www.clerksroom.com/ and many more.
  8. 8. How to prepare • This guidance is from my website at https://chrismakin.co.uk/mediation/preparation/ - see detail • Lawyers should ask their client their best outcome, their red lines, their reasonable outcome. • My checklist has this, including a section where the party pretends to be their opponent. • Consider sending this checklist to the mediator. • Supply a Mediation Position Statement (1 page if possible) with key documents, but DO NOT photocopy the entire filing cabinet contents! KISS (Keep It Simple, Stupid!).
  9. 9. My confidential checklist Stage 1 – Your Case 1. What is the case about? On no more than one sheet of A4, describe the dispute and how it arose. 2. List the evidence you have to support your case. 3. Identify any issues which are not supported by evidence, and consider whether you could obtain evidence to support them. 4. What monetary outcome do you seek (if you are claimant), or does the other party seek (if you are defendant)? 5. What non-monetary do you seek (if you are claimant), or does the other party seek (if you are defendant)? 6. List the arguments which support your position on liability. 7. List the arguments which support your position on compensation. 8. List your strengths. 9. List your weaknesses.
  10. 10. My confidential checklist Stage 2 – The Other Party’s Case The dispute would not have continued if the other side did not have a point of view, and arguments which they consider to be in their favour. So, being realistic, imagine you are the other party and make notes on the following: 1. List the evidence you think they have to support their case. 2. What monetary outcome do you think they seek (if they are claimant), or do they think you seek (if they are defendant)? 3. What non-monetary outcome do you think they seek (if they are claimant), or do they think you seek (if they are defendant)? 4. List the arguments which support their position on liability. 5. List the arguments which support their position on compensation. 6. List their strengths. 7. List their weaknesses.
  11. 11. My confidential checklist Stage 3 – The Written Summary Now extend the written summary from Stage 1(1) to include: 1. Are there any unique features of the case which the mediator should be aware of? 2. Did any pre-negotiations take place? Was any progress made? What aspects of the case have already been settled? Why do you think a full settlement was not achieved? 3. Have any without prejudice offers been made? Details please! 4. Have any Part 36 offers been made? Details please! 5. Are there any “red herrings” which the mediator ought to be aware of? 6. Would a chronology help the mediator?
  12. 12. My confidential checklist Stage 4 – The Decision-Makers It is essential that the person/persons with full authority to settle (with no upper limit) is/are available on the day. It is highly preferable that the decision makers are present to hear the arguments and contribute to them. But if not available (an insurance claims manager, for example) it is crucially important that they are contactable, even late at night, to approve any settlement reached. So: 1. Who will be attending the mediation, and in what capacity? 2. Are those persons the ultimate decision-makers? 3. If not, how can the ultimate decision-makers be contacted, even out of hours?
  13. 13. My confidential checklist Stage 5 – Proceedings This stage applies only if legal proceedings have commenced. 1. Please provide copies of the relevant proceedings. 2. Are there any particular aspects of the pleadings which the mediator should be aware of? 3. What stage of disclosure has been reached? 4. Please make sure that the mediation does not get bogged down with a mass of paperwork and unnecessary detail. This is not a trial, and it is not necessary for the mediator to receive a trial bundle. By all means bring your files to the mediation if you wish, but don’t use them! Disclose to the mediator only those documents which are crucial to an understanding of the case. 5. Have any admissions been made?
  14. 14. My confidential checklist Stage 6 – What outcome would satisfy you, and what are the costs in achieving them? At this stage you must ask yourself what you hope to achieve, and the costs and risks in achieving it. Remember always that the other party will be going through the same process. The aim of mediation is for the parties to be helped to reach a solution they can live with. An acceptable solution may change during the discussions, but it is valuable for you to write down your views at the start. So: 1. What would you like to get? 2. What would you accept? 3. What is your bottom line? 4. At what point would you walk away? 5. How did you value the case? 6. What elements are included (eg special damages)?
  15. 15. My confidential checklist 1. What have you spent so far on legal costs? 2. How much more would you have to spend on legal costs to the end of a trial? 3. What is your %age chance of winning at court? 4. Does your solicitor agree with that chance? 5. What do you estimate the other party considers its %age chance? 6. How much of your own chargeable or management time, and at what cost, would it take to prepare this dispute for trial, and to attend trial, if mediation were to fail? 7. What business opportunities or family “quality” time would you lose if the case had to go to court? 8. What reputational damage might be suffered if your dispute were to be heard in a public court? 9. What questions would you like the mediator to put to the other party in private?
  16. 16. My confidential checklist Stage 7 – The touchy-feely bits All disputes, however purely commercial they may seem, have emotional aspects. So consider: 1. What do you really want to achieve at the mediation? 2. If you achieved this, what would it mean for you? 3. What do you need to do to achieve this? 4. What do you need to say to the other party to achieve this? 5. What would you need to hear from the other party to achieve this? 6. What are your main concerns at this stage? 7. What do you think are the other party’s main concerns at this stage? 8. Where might misunderstandings have arisen between you in the past? 9. Could they be remedied at the mediation? 10. Why do you think the other party are attending the mediation? What do you think they seek to get out of it?
  17. 17. On the Day • Arrive on time. • Mediator will want a brief chat at start; just introductions. • All gather for joint session – recommended. • Mediator explains confidentiality, without prejudice, etc. • A party from each side confirms they have authority to settle. • 5 minutes uninterrupted speech from each side. • Possibly joint session continues, if only to agree agenda. • Private rooms (caucus) and mediator sees each side separately. • Essential the parties are fully open with the mediator. • Common issues are explored. • Only the mediator knows the full story – trust him/her!
  18. 18. Moving towards settlement • The mediator’s challenge is to find the common ground – no outright winners or losers, but what all parties can live with. • As an accountant mediator, I will often have prepared an interactive spreadsheet for such as partnership disputes, where we can explore “what ifs” – what if I agree to £X? etc. • When (not if!) agreement is reached, that is evidenced by a Tomlin Order or settlement agreement. • I generally take pro formas with a notebook and printer, to be signed there and then. • With a Zoom mediation, can be evidenced by exchange of emails.
  19. 19. And afterwards? • Tomlin Order to be filed at court – we don’t need a trial any more. • Parties to carry out what they promised in Tomlin Order or settlement agreement. • Grounds for specific performance if they fail to do so. • Then – NOTHING. Gosh! - How do I fill my evenings???
  20. 20. How to get the best out of mediation • Act throughout in good faith. • Understand that your opponent has a point of view, even if you don’t agree with it. • Be fully prepared – understand your case, your good points, your bad points, your red lines. • KISS – keep to the big picture. • No long speeches – purlease! • Look forward to possible solutions; don’t rake over the past. • Think positive; remember that 80% of mediations do settle (and you can learn a lot about your opponent from the failed ones!)
  21. 21. Some examples from my mediations 1. The grandfather clock – and the moral is? 2. The propounded codicil – and the moral is? 3. The sports car which burst into flames – FIVE TIMES – and the moral is? 4. The oil products handbag – and the moral is? 5. The tax negligence case – and the moral is? 6. The Billy-No-Mates – and the moral is? 7. Partnership dispute - is it a mediation? Is it an ED? And the moral is?
  22. 22. Your examples and what we learn? 1. ? 2. ? 3. ? 4. ? 5. ? 6. ? 7. ?
  23. 23. THANK YOU Thank you for attending this webinar. And if you have been, thanks for listening! It’s now time for your questions. You can use the chat function or raise your hand and we will work our way round the virtual room. Thank you for supporting IMAW. Please do share the link to www.imaw.org with your colleagues and contacts. Many thanks The IMAW team

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