Presentation to 80 judges and advocates in Edinburgh on the growth of mediation in England & Wales.

1. Chris Makin mediator
1
The Growth of Mediation:
lessons from England
A presentation to the Faculty of
A presentation to the Faculty of
Advocates’ Mediation & Dispute
Advocates’ Mediation & Dispute
Resolution Group
Resolution Group
on 8 November 2007
on 8 November 2007
by
by
Chris Makin FCA FCMI FAE QDR MCIArb
Chris Makin FCA FCMI FAE QDR MCIArb

2. Chris Makin mediator
2
Who am I?
A “normal” accountant in public
A “normal” accountant in public
practice for 18 years
practice for 18 years
Then a forensic accountant expert
Then a forensic accountant expert
witness for 20 years
witness for 20 years
Of which a mediator for 8 years
Of which a mediator for 8 years
Now doing a couple of mediations a
Now doing a couple of mediations a
month
month
84% settlement rate to date
84% settlement rate to date

3. Chris Makin mediator
3
Rules of Engagement
“Death by PowerPoint” is for your future reference
“Death by PowerPoint” is for your future reference –
– I
I
won’t cover it all today
won’t cover it all today
If you can’t understand my weird Yorkshire accent
If you can’t understand my weird Yorkshire accent –
–
shout!
shout!
If I speak too quickly
If I speak too quickly –
– shout!
shout!
If you have a pressing issue
If you have a pressing issue –
– shout!
shout!
...but time is limited
...but time is limited
I will address Civil Commercial Mediation only
I will address Civil Commercial Mediation only –
–
not Family or Neighbourhood Mediation
not Family or Neighbourhood Mediation
This is the English experience, so I will use English
This is the English experience, so I will use English
legal language
legal language –
– sorry!
sorry!

4. Chris Makin mediator
4
Outline
Why Alternative Dispute Resolution (“ADR”)
Why Alternative Dispute Resolution (“ADR”)
is now so important in the litigation process in
is now so important in the litigation process in
England
England
The CPR framework
The CPR framework
Encouragement by judges
Encouragement by judges
When to mediate
When to mediate
What really happens
What really happens
How to get the best for your clients
How to get the best for your clients
Examples exercises
Examples exercises
Open forum
Open forum

5. Chris Makin mediator
5
“All members of the legal
“All members of the legal
profession who conduct
profession who conduct
litigation should now routinely
litigation should now routinely
consider with their clients
consider with their clients
whether their disputes are
whether their disputes are
suitable for ADR”
suitable for ADR” –
– Dyson LJ
Dyson LJ
in
in Halsey
Halsey –
–v
v-
- Milton Keynes
Milton Keynes
NHS Trust
NHS Trust [2004] EWCA 3006
[2004] EWCA 3006
Civ 576
Civ 576

6. Chris Makin mediator
6
Lightman J :
Lightman J :
“The loss of a good night’s sleep is a real price to pay
“The loss of a good night’s sleep is a real price to pay
for litigation, a price which practitioners and indeed
for litigation, a price which practitioners and indeed
the parties all too often forget or underplay when the
the parties all too often forget or underplay when the
decision to litigate is made. In the case of mediation
decision to litigate is made. In the case of mediation
everyone can be the winner
everyone can be the winner
the costs can be small;
the costs can be small;
a result may be achieved in a short passage of time;
a result may be achieved in a short passage of time;
and personal relations may be salvaged.
and personal relations may be salvaged.
Mediation is not a universal panacea: it has its
Mediation is not a universal panacea: it has its
limitations and it is not always applicable.
limitations and it is not always applicable. But
But where
where
it is available in my view no sane or conscientious
it is available in my view no sane or conscientious
litigators or party will lightly reject it if he fairly
litigators or party will lightly reject it if he fairly
weighs up the alternative namely litigation
weighs up the alternative namely litigation, and
, and any
adviser who does so invites a claim in negligence
against him.”
.”
-
- conclusion to speech “The Trials of Litigation” in 2003
conclusion to speech “The Trials of Litigation” in 2003

7. Chris Makin mediator
7
The changed dynamics
Civil Procedure Rules 26 April 1999
Civil Procedure Rules 26 April 1999
A new
A new Code
Code –
– all past custom
all past custom
precedent swept away
precedent swept away
Judges, not solicitors, manage cases
Judges, not solicitors, manage cases
Pre
Pre-
-Action Protocols require early
Action Protocols require early
disclosure of the parties’ positions
disclosure of the parties’ positions
Judges encourage ADR
Judges encourage ADR
Parties are encouraged to settle
Parties are encouraged to settle
Sanctions in the new Part 36
Sanctions in the new Part 36

8. Chris Makin mediator
8
The new Code
1.1(1) These Rules are a new procedural code with
1.1(1) These Rules are a new procedural code with
the overriding objective of enabling the court to deal
the overriding objective of enabling the court to deal
with cases justly.
with cases justly.
1.4(1) The court must further the overriding
1.4(1) The court must further the overriding
objective by actively managing cases.
objective by actively managing cases.
1.4(2) Active case management includes
1.4(2) Active case management includes-
-
(e) encouraging the parties to use an ADR procedure
(e) encouraging the parties to use an ADR procedure
if the court considers that appropriate, and facilitating
if the court considers that appropriate, and facilitating
the use of such procedure…
the use of such procedure…

9. Chris Makin mediator
9
So judges must encourage ADR
1.4(1) The court must further the
1.4(1) The court must further the
overriding objective by actively
overriding objective by actively
managing cases.
managing cases.
1.4(2) Active case management
1.4(2) Active case management
includes
includes-
-
(e)
(e) encouraging the parties to use an
encouraging the parties to use an
ADR procedure
ADR procedure if the court considers
if the court considers
that appropriate, and facilitating the
that appropriate, and facilitating the
use of such procedure…
use of such procedure…

10. Chris Makin mediator
10
What “encouragement”? Part 1
Dyson Field, exors of Lawrence Twohey dec’d
Dyson Field, exors of Lawrence Twohey dec’d –
–
v
v-
- Leeds City Council
Leeds City Council (CofA 22 Nov 1999) Ward
(CofA 22 Nov 1999) Ward
LJ, Laws Woolf LLJ agreeing
LJ, Laws Woolf LLJ agreeing
16:
16: Damages are substantially agreed
Damages are substantially agreed. …this is
. …this is
pre
pre-
-eminently the category of case in which,
eminently the category of case in which,
consistent with the overriding objective of the
consistent with the overriding objective of the
CPR and the court’s duty to manage cases as set
CPR and the court’s duty to manage cases as set
out in rule 1.4(2)(e), [
out in rule 1.4(2)(e), [that
that] we should encourage
] we should encourage
the parties to use ADR…
the parties to use ADR…
18: …I would also add the reminder that the court
18: …I would also add the reminder that the court
has powers to take a strong view about the
has powers to take a strong view about the
rejection of the encouraging noises we are making,
rejection of the encouraging noises we are making,
if necessary by imposing eventual orders for
if necessary by imposing eventual orders for
indemnity costs or indeed ordering that a higher
indemnity costs or indeed ordering that a higher
rate of interest be paid on any damages…
rate of interest be paid on any damages…

11. Chris Makin mediator
11
What “encouragement”? Part 2
Cowl Plymouth City Council
Cowl Plymouth City Council [2001]
[2001]
EWCA Civ 1935
EWCA Civ 1935
Dunnett
Dunnett –
–v
v-
- Railtrack
Railtrack [2002] EWCA
[2002] EWCA
Civ 302
Civ 302
Shirayama Shokusan Co Ltd
Shirayama Shokusan Co Ltd –
–v
v-
-
Danovo Ltd
Danovo Ltd [2003] EWCH 3006 (Ch)
[2003] EWCH 3006 (Ch)
Burchell NF
Burchell NF –
–v
v-
- Bullard Ors
Bullard Ors [2005]
[2005]
EWCA Civ 358
EWCA Civ 358

12. Chris Makin mediator
12
What “encouragement”? Part 3
McMillan Williams Range
McMillan Williams Range [2004] EWCA Civ
[2004] EWCA Civ
294
294
Tuckey LJ in allowing appeal to CofApp:
Tuckey LJ in allowing appeal to CofApp: “The
“The
costs of further litigating this dispute will be
costs of further litigating this dispute will be
disproportionate to the amount at stake. ADR is strongly
disproportionate to the amount at stake. ADR is strongly
recommended.”
recommended.”
Ward LJ: £50,000 costs to date.
Ward LJ: £50,000 costs to date. “My heart sinks.”
“My heart sinks.”
Parties refused mediation because:
Parties refused mediation because: “…it appears
“…it appears
clear beyond any doubt that the mediation will not be
clear beyond any doubt that the mediation will not be
successful because neither side are willing to change their
successful because neither side are willing to change their
position.”
position.”
Ward LJ:
Ward LJ: “In my judgment this is a case where we
“In my judgment this is a case where we
should condemn the posturing and jockeying for position
should condemn the posturing and jockeying for position
… and thus direct that each side pays its own costs for
… and thus direct that each side pays its own costs for
their frolic in the Court of Appeal.”
their frolic in the Court of Appeal.”

13. Chris Makin mediator
13
The Audi TT 3.2 V6 quattro
Court
Court of
of Appeal
Appeal judgment,
judgment, 18
18 October
October 2007
2007
New Audi pulled to the left?
New Audi pulled to the left?
Quantum was £6,000; costs £100,000!
Quantum was £6,000; costs £100,000!
May LJ at 53 (last paragraph):
May LJ at 53 (last paragraph):
“What I have found profoundly unsatisfactory ... is the fact that the parties have
“What I have found profoundly unsatisfactory ... is the fact that the parties have
between them spent in the region of £100,000 arguing over a claim which is worth
between them spent in the region of £100,000 arguing over a claim which is worth
about £6,000. In the florid language of the argument, I regarded them, one or other,
about £6,000. In the florid language of the argument, I regarded them, one or other,
if not both of them, as “
if not both of them, as “completely cuckoo
completely cuckoo”... “
”... “This case cries out for mediation
This case cries out for mediation”
”
should be the advice given [
should be the advice given [to both parties as early as possible
to both parties as early as possible]. Why? Because it
]. Why? Because it
is perfectly obvious what will happen. Feelings are running high, early positions
is perfectly obvious what will happen. Feelings are running high, early positions
are taken, positions become entrenched, the litigation bandwagon will roll on,
are taken, positions become entrenched, the litigation bandwagon will roll on,
experts are inevitably involved, and, before one knows it, there will be a two/three
experts are inevitably involved, and, before one knows it, there will be a two/three
day trial and even, heaven help them, an appeal. And what benefit can mediation
day trial and even, heaven help them, an appeal. And what benefit can mediation
bring?
bring?
to be continued...
to be continued...
Egan
Egan –
–v
v-
- Motor Services (Bath) Ltd
Motor Services (Bath) Ltd [2007] EWCA Civ 1002
[2007] EWCA Civ 1002

14. Chris Makin mediator
14
The Audi TT 3.2 V6 quattro
“It brings an air of reality to negotiations that, I accept, may well have taken place
“It brings an air of reality to negotiations that, I accept, may well have taken place
in this case, though, for obvious reasons, we have not sought to enquire into that at
in this case, though, for obvious reasons, we have not sought to enquire into that at
this stage. Mediation can do more for the parties than parties sitting at the same
this stage. Mediation can do more for the parties than parties sitting at the same
table but hearing it come from someone who is independent. At the time this
table but hearing it come from someone who is independent. At the time this
dispute crystallised, the car was practically brand new. ...perhaps a replacement
dispute crystallised, the car was practically brand new. ...perhaps a replacement
vehicle...Audi’s good name intact and probably enhanced, but perhaps with each of
vehicle...Audi’s good name intact and probably enhanced, but perhaps with each of
them a little less wealthy. The cost of such mediation would be paltry by
them a little less wealthy. The cost of such mediation would be paltry by
comparison with the costs that would mount from the moment of issue of the claim.
comparison with the costs that would mount from the moment of issue of the claim.
In so many cases, and this is just another example of one, the best time to mediate is
In so many cases, and this is just another example of one, the best time to mediate is
before the litigation begins. It is not a sign of weakness to suggest it. It is the
before the litigation begins. It is not a sign of weakness to suggest it. It is the
hallmark of commonsense. Mediation is a perfectly proper adjunct to litigation.
hallmark of commonsense. Mediation is a perfectly proper adjunct to litigation.
The skills are now well developed. The results are astonishingly good.
The skills are now well developed. The results are astonishingly good.
“Try it more often.”
“Try it more often.”
And with those words, the court rose!
And with those words, the court rose!
Egan
Egan –
–v
v-
- Motor Services (Bath) Ltd
Motor Services (Bath) Ltd [2007] EWCA Civ 1002
[2007] EWCA Civ 1002

15. Chris Makin mediator
15
The Halsey checklist
The
The general
general rule
rule is
is still
still that
that the
the winning
winning party
party will
will be
be awarded
awarded their
their
costs
costs.
. But
But in
in assessing
assessing whether
whether a
a party’s
party’s refusal
refusal to
to use
use ADR
ADR is
is
reasonable,
reasonable, these
these tests
tests will
will be
be applied
applied:
:
Whether it is important to establish a principle or set a precedent
Whether it is important to establish a principle or set a precedent
The merits of the case, since a party who reasonably believes they
The merits of the case, since a party who reasonably believes they
have an unassailable case may reasonably refuse, but a party who
have an unassailable case may reasonably refuse, but a party who
holds that view unreasonably may not
holds that view unreasonably may not
Whether other forms of ADR have been attempted, even though the
Whether other forms of ADR have been attempted, even though the
Court recognises mediation as by far the most successful method
Court recognises mediation as by far the most successful method
The cost of ADR; normally modest but may be disproportionate for
The cost of ADR; normally modest but may be disproportionate for
a small case
a small case
Any damaging effects of delay, where for instance a trial is
Any damaging effects of delay, where for instance a trial is
looming
looming
Whether ADR has a reasonable chance of reaching a settlement
Whether ADR has a reasonable chance of reaching a settlement
How strongly ADR may have been encouraged by the Court
How strongly ADR may have been encouraged by the Court
Overall, the
Overall, the risk
risk on costs rests with the party
on costs rests with the party
who
who refuses
refuses ADR
ADR
Halsey
Halsey –
–v Milton Keynes General NHS Trust
v Milton Keynes General NHS Trust [2004] EWCA Civ 576
[2004] EWCA Civ 576

16. Chris Makin mediator
16
What is mediation?
“Facilitated negotiation”
“Facilitated negotiation”
The mediator assists the parties
The mediator assists the parties
to
to reach a solution they can
both/all live with
The parties are in charge
The parties are in charge
throughout the process; the
throughout the process; the
mediator merely assists them to
mediator merely assists them to
negotiate
negotiate

17. Chris Makin mediator
17
An example
The business neighbours…
The business neighbours…
…had not spoken for TEN YEARS!
…had not spoken for TEN YEARS!
Refused to join in first joint session
Refused to join in first joint session
“Gentrification” of a run
“Gentrification” of a run-
-down area
down area
Tarmac yard
Tarmac yard
Water ingress
Water ingress
£100,000 loss of profits per expert “report”
£100,000 loss of profits per expert “report”
Rights of Way
Rights of Way
Access to premises
Access to premises
The mediator works on the true aims of the
The mediator works on the true aims of the
parties
parties

18. Chris Makin mediator
18
More examples
Mother Son
Mother Son…
…
…had not spoken for SIX YEARS!
…had not spoken for SIX YEARS!
£253,000 cash diversion claim
£253,000 cash diversion claim
“Lost a granddaughter”
“Lost a granddaughter”
“Take cash off mother”
“Take cash off mother”
Defective vehicle
Defective vehicle
Four parties
Four parties
Audi R8 or Lamborghini?
Audi R8 or Lamborghini?

19. Chris Makin mediator
19
Statistics
There are no national statistics for reduction in number of claims
There are no national statistics for reduction in number of claims
issued, number of mediations done, settlement rates etc.
issued, number of mediations done, settlement rates etc.
Probably about 4,000 mediations a year, and rising
Probably about 4,000 mediations a year, and rising
65% of the mediations are done by 65 mediators!
65% of the mediations are done by 65 mediators!
Many qualified mediators have never done a mediation
Many qualified mediators have never done a mediation
General impression that number of claims issued has reduced
General impression that number of claims issued has reduced
Senior judges encourage mediation, but encouragement is very
Senior judges encourage mediation, but encouragement is very
patchy in the lower courts
patchy in the lower courts
National Mediation Helpline 2006:
National Mediation Helpline 2006:
16,432 calls to the helpline
16,432 calls to the helpline
Referred by Court 979; direct call 11,626; online 627; others/unclear 3,142
Referred by Court 979; direct call 11,626; online 627; others/unclear 3,142
Resulted in 2,686 mediations referred to providers
Resulted in 2,686 mediations referred to providers
Settled before mediation 8.54%; at mediation 60.59%; within next 14 days
Settled before mediation 8.54%; at mediation 60.59%; within next 14 days
2.42%; mediation cancelled 3.06%; not settled 30.35%; others 12.02%
2.42%; mediation cancelled 3.06%; not settled 30.35%; others 12.02%
(total 113.94%!!#@~?!!)
(total 113.94%!!#@~?!!)

20. Chris Makin mediator
20
Why does mediation work?
The parties are in charge of their own dispute
The parties are in charge of their own dispute
All proceedings are in private, with no publicity
All proceedings are in private, with no publicity
The mediator listens, but does not give any
The mediator listens, but does not give any
advice or make any judgement
advice or make any judgement
In private sessions, the mediator gently discovers
In private sessions, the mediator gently discovers
the true nature of the problem, and the
the true nature of the problem, and the
compromise which would be acceptable to both
compromise which would be acceptable to both
Many solutions involve an agreement which a
Many solutions involve an agreement which a
court could never order
court could never order
Everything is without prejudice, and anything
Everything is without prejudice, and anything
told to the mediator will never be repeated in
told to the mediator will never be repeated in
subsequent hearings
subsequent hearings

21. Chris Makin mediator
21
Advantages of mediation
No winners or losers
No winners or losers
No precedents set
No precedents set
Absolutely
Absolutely no
no publicity
publicity
Parties remain in control
Parties remain in control
Can take place at any time
Can take place at any time
Quick to arrange
Quick to arrange
Costs are modest
Costs are modest
Maybe you won’t get a hearing until
Maybe you won’t get a hearing until
you’ve attempted mediation!
you’ve attempted mediation!

22. Chris Makin mediator
22
When to mediate
Constantly review throughout each case
Constantly review throughout each case
It’s never too late, but early is better
It’s never too late, but early is better
Ideally, when the main issues in the case are
Ideally, when the main issues in the case are
known but before heavy legal fees are incurred
known but before heavy legal fees are incurred
“Dancing with a gorilla”
“Dancing with a gorilla”
Costs can quickly become more important than
Costs can quickly become more important than
the original claim
the original claim
Remember
Remember Egan
Egan –
–v
v-
- Motor Services (Bath) Ltd
Motor Services (Bath) Ltd
Don’t regard an offer to mediate as a sign of
Don’t regard an offer to mediate as a sign of
weakness
weakness

23. Chris Makin mediator
23
How to prepare (1)
Choose and agree the mediator
Choose and agree the mediator
Many are lawyers, but that’s not essential
Many are lawyers, but that’s not essential
Not necessary to choose a mediator with technical or detailed legal
Not necessary to choose a mediator with technical or detailed legal
knowledge; the mediator must rise above the detail
knowledge; the mediator must rise above the detail
Look at CVs carefully, and don’t reject just because the other side recommend
Look at CVs carefully, and don’t reject just because the other side recommend
Go for the proven track record, and the personal and
Go for the proven track record, and the personal and listening
listening skills
skills –
– most
most
parties really need a social worker!
parties really need a social worker!
Prepare a brief bundle, ideally agreed with other side.
Prepare a brief bundle, ideally agreed with other side.
Not a trial bundle, but should contain key documents
Not a trial bundle, but should contain key documents
and your 1
and your 1-
-4 page summary of the issues
4 page summary of the issues
Calculate costs, and make a realistic estimate of
Calculate costs, and make a realistic estimate of
costs to end of trial; the mediator will need
costs to end of trial; the mediator will need
these
these

24. Chris Makin mediator
24
How to prepare (2)
With your client:
With your client:
carefully consider the litigation risk of each element of the claim
carefully consider the litigation risk of each element of the claim
assess carefully the best and worst outcome they can live with
assess carefully the best and worst outcome they can live with
constantly consider the conclusions the other side will be reaching
constantly consider the conclusions the other side will be reaching
during the same process
during the same process
if each side thinks they have a 70% chance of success at trial, they
if each side thinks they have a 70% chance of success at trial, they
can’t both be right!!
can’t both be right!!
consider the loss of management time if the case proceeds to a full
consider the loss of management time if the case proceeds to a full
trial
trial
consider the advantage of achieving certainty of outcome on the day
consider the advantage of achieving certainty of outcome on the day
of the mediation
of the mediation
calculate the cost if it all goes wrong at trial
calculate the cost if it all goes wrong at trial
consider if they wish to achieve privacy, maintained reputation,
consider if they wish to achieve privacy, maintained reputation,
restoring of relationship, etc
restoring of relationship, etc
Consider whether you wish to send a confidential letter to the
Consider whether you wish to send a confidential letter to the
mediator
mediator

25. Chris Makin mediator
25
On the day
Introductions
Introductions
Opening statements
Opening statements
Private meetings
Private meetings –
– be fully frank with the mediator
be fully frank with the mediator
Let him help you find the “gold dust”
Let him help you find the “gold dust”
You will spend a long time waiting
You will spend a long time waiting
Don’t have any evening commitments
Don’t have any evening commitments
Keep faith in the mediator and the process, even
Keep faith in the mediator and the process, even
when you feel you are getting nowhere; there is
when you feel you are getting nowhere; there is
always a low point, usually leading to sunny uplands
always a low point, usually leading to sunny uplands
Remember that 65
Remember that 65-
-85% of mediations settle
85% of mediations settle
And even if yours doesn’t, and even though
And even if yours doesn’t, and even though
everything is without prejudice, you will have learned
everything is without prejudice, you will have learned
an awful lot about your opponent!
an awful lot about your opponent!

26. Chris Makin mediator
26
Now it’s your
Now it’s your
turn to work!
turn to work!
Chris Makin FCA FCMI FAE QDR MCIArb
Chris Makin FCA FCMI FAE QDR MCIArb