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

1. Chris Makin mediator
The Growth of Mediation:
lessons from England
A presentation to the Faculty of
Advocates’ Mediation & Dispute
Resolution Group
on 8 November 2007
by
Chris Makin FCA FCMI FAE QDR MCIArb
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2. Chris Makin mediator
Who am I?
A “normal” accountant in public
practice for 18 years
Then a forensic accountant & expert
witness for 20 years
Of which a mediator for 8 years
Now doing a couple of mediations a
month
84% settlement rate to date
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3. Chris Makin mediator
Rules of Engagement
“Death by PowerPoint” is for your future reference – I
won’t cover it all today
If you can’t understand my weird Yorkshire accent –
shout!
If I speak too quickly – shout!
If you have a pressing issue – shout!
...but time is limited
I will address Civil & Commercial Mediation only –
not Family or Neighbourhood Mediation
This is the English experience, so I will use English
legal language – sorry!
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4. Chris Makin mediator
Outline
Why Alternative Dispute Resolution (“ADR”)
is now so important in the litigation process in
England
The CPR framework
Encouragement by judges
When to mediate
What really happens
How to get the best for your clients
Examples & exercises
Open forum
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5. Chris Makin mediator
“All members of the legal
profession who conduct
litigation should now routinely
consider with their clients
whether their disputes are
suitable for ADR” – Dyson LJ
in Halsey –v- Milton Keynes
NHS Trust [2004] EWCA 3006
Civ 576
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6. Chris Makin mediator
Lightman J :
“The loss of a good night’s sleep is a real price to pay
for litigation, a price which practitioners and indeed
the parties all too often forget or underplay when the
decision to litigate is made. In the case of mediation
everyone can be the winner
the costs can be small;
a result may be achieved in a short passage of time;
and personal relations may be salvaged.
Mediation is not a universal panacea: it has its
limitations and it is not always applicable. But where
it is available in my view no sane or conscientious
litigators or party will lightly reject it if he fairly
weighs up the alternative namely litigation, and any
litigation,
adviser who does so invites a claim in negligence
against him.” .”
- conclusion to speech “The Trials of Litigation” in 2003
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7. Chris Makin mediator
The changed dynamics
Civil Procedure Rules 26 April 1999
A new Code – all past custom &
precedent swept away
Judges, not solicitors, manage cases
Pre-Action Protocols require early
Pre-
disclosure of the parties’ positions
Judges encourage ADR
Parties are encouraged to settle
Sanctions in the new Part 36
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8. Chris Makin mediator
The new Code
1.1(1) These Rules are a new procedural code with
the overriding objective of enabling the court to deal
with cases justly.
1.4(1) The court must further the overriding
objective by actively managing cases.
1.4(2) Active case management includes-
includes-
(e) encouraging the parties to use an ADR procedure
if the court considers that appropriate, and facilitating
the use of such procedure…
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9. Chris Makin mediator
So judges must encourage ADR
1.4(1) The court must further the
overriding objective by actively
managing cases.
1.4(2) Active case management
includes-
includes-
(e) encouraging the parties to use an
ADR procedure if the court considers
that appropriate, and facilitating the
use of such procedure…
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10. Chris Makin mediator
What “encouragement”? Part 1
Dyson & Field, exors of Lawrence Twohey dec’d –
v- Leeds City Council (CofA 22 Nov 1999) Ward
LJ, Laws & Woolf LLJ agreeing
16: Damages are substantially agreed. …this is
agreed.
pre-eminently the category of case in which,
pre-
consistent with the overriding objective of the
CPR and the court’s duty to manage cases as set
out in rule 1.4(2)(e), [that] we should encourage
[that]
the parties to use ADR…
18: …I would also add the reminder that the court
has powers to take a strong view about the
rejection of the encouraging noises we are making,
if necessary by imposing eventual orders for
indemnity costs or indeed ordering that a higher
rate of interest be paid on any damages…
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11. Chris Makin mediator
What “encouragement”? Part 2
Cowl & Plymouth City Council [2001]
EWCA Civ 1935
Dunnett –v- Railtrack [2002] EWCA
Civ 302
Shirayama Shokusan Co Ltd –v-
Danovo Ltd [2003] EWCH 3006 (Ch)
Burchell NF –v- Bullard & Ors [2005]
EWCA Civ 358
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12. Chris Makin mediator
What “encouragement”? Part 3
McMillan Williams & Range [2004] EWCA Civ
294
Tuckey LJ in allowing appeal to CofApp: “The
costs of further litigating this dispute will be
disproportionate to the amount at stake. ADR is strongly
recommended.”
Ward LJ: £50,000 costs to date. “My heart sinks.”
Parties refused mediation because: “…it appears
clear beyond any doubt that the mediation will not be
successful because neither side are willing to change their
position.”
Ward LJ: “In my judgment this is a case where we
should condemn the posturing and jockeying for position
… and thus direct that each side pays its own costs for
their frolic in the Court of Appeal.” 12

13. Chris Makin mediator
The Audi TT 3.2 V6 quattro
Court of Appeal judgment, 18 October 2007
New Audi pulled to the left?
Quantum was £6,000; costs £100,000!
May LJ at 53 (last paragraph):
“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
about £6,000. In the florid language of the argument, I regarded them, one or other,
if not both of them, as “completely cuckoo”... “This case cries out for mediation”
“completely cuckoo”... “This mediation”
should be the advice given [to both parties as early as possible]. Why? Because it
[to possible].
is perfectly obvious what will happen. Feelings are running high, early positions
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
day trial and even, heaven help them, an appeal. And what benefit can mediation
bring?
to be continued...
Egan –v- Motor Services (Bath) Ltd [2007] EWCA Civ 1002 13

14. Chris Makin mediator
The Audi TT 3.2 V6 quattro
“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
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
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
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.
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
hallmark of commonsense. Mediation is a perfectly proper adjunct to litigation.
The skills are now well developed. The results are astonishingly good.
“Try it more often.”
And with those words, the court rose!
Egan –v- Motor Services (Bath) Ltd [2007] EWCA Civ 1002 14

15. Chris Makin mediator
The Halsey checklist
The general rule is still that the winning party will be awarded their
costs. But in assessing whether a party’s refusal to use ADR is
costs.
reasonable, these tests will be applied:
applied:
Whether it is important to establish a principle or set a precedent
The merits of the case, since a party who reasonably believes they
have an unassailable case may reasonably refuse, but a party who
holds that view unreasonably may not
Whether other forms of ADR have been attempted, even though the
Court recognises mediation as by far the most successful method
The cost of ADR; normally modest but may be disproportionate for
a small case
Any damaging effects of delay, where for instance a trial is
looming
Whether ADR has a reasonable chance of reaching a settlement
How strongly ADR may have been encouraged by the Court
Overall, the risk on costs rests with the party
who refuses ADR
Halsey –v Milton Keynes General NHS Trust [2004] EWCA Civ 57615

16. Chris Makin mediator
What is mediation?
“Facilitated negotiation”
The mediator assists the parties
to reach a solution they can
both/all live with
The parties are in charge
throughout the process; the
mediator merely assists them to
negotiate
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17. Chris Makin mediator
An example
The business neighbours…
…had not spoken for TEN YEARS!
Refused to join in first joint session
“Gentrification” of a run-down area
run-
Tarmac yard
Water ingress
£100,000 loss of profits per expert “report”
Rights of Way
Access to premises
The mediator works on the true aims of the
parties
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18. Chris Makin mediator
More examples
Mother & Son…
Son…
…had not spoken for SIX YEARS!
£253,000 cash diversion claim
“Lost a granddaughter”
“Take cash off mother”
Defective vehicle
Four parties
Audi R8 or Lamborghini?
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19. Chris Makin mediator
Statistics
There are no national statistics for reduction in number of claims
issued, number of mediations done, settlement rates etc.
Probably about 4,000 mediations a year, and rising
65% of the mediations are done by 65 mediators!
Many qualified mediators have never done a mediation
General impression that number of claims issued has reduced
Senior judges encourage mediation, but encouragement is very
patchy in the lower courts
National Mediation Helpline 2006:
16,432 calls to the helpline
Referred by Court 979; direct call 11,626; online 627; others/unclear 3,142
Resulted in 2,686 mediations referred to providers
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%
(total 113.94%!!#@~?!!)
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20. Chris Makin mediator
Why does mediation work?
The parties are in charge of their own dispute
All proceedings are in private, with no publicity
The mediator listens, but does not give any
advice or make any judgement
In private sessions, the mediator gently discovers
the true nature of the problem, and the
compromise which would be acceptable to both
Many solutions involve an agreement which a
court could never order
Everything is without prejudice, and anything
told to the mediator will never be repeated in
subsequent hearings
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21. Chris Makin mediator
Advantages of mediation
No winners or losers
No precedents set
Absolutely no publicity
Parties remain in control
Can take place at any time
Quick to arrange
Costs are modest
Maybe you won’t get a hearing until
you’ve attempted mediation!
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22. Chris Makin mediator
When to mediate
Constantly review throughout each case
It’s never too late, but early is better
Ideally, when the main issues in the case are
known but before heavy legal fees are incurred
“Dancing with a gorilla”
Costs can quickly become more important than
the original claim
Remember Egan –v- Motor Services (Bath) Ltd
Don’t regard an offer to mediate as a sign of
weakness
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23. Chris Makin mediator
How to prepare (1)
Choose and agree the mediator
Many are lawyers, but that’s not essential
Not necessary to choose a mediator with technical or detailed legal
knowledge; the mediator must rise above the detail
Look at CVs carefully, and don’t reject just because the other side recommend
Go for the proven track record, and the personal and listening skills – most
parties really need a social worker!
Prepare a brief bundle, ideally agreed with other side.
Not a trial bundle, but should contain key documents
and your 1-4 page summary of the issues
1-
Calculate costs, and make a realistic estimate of
costs to end of trial; the mediator will need
these
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24. Chris Makin mediator
How to prepare (2)
With your client:
carefully consider the litigation risk of each element of the claim
assess carefully the best and worst outcome they can live with
constantly consider the conclusions the other side will be reaching
during the same process
if each side thinks they have a 70% chance of success at trial, they
can’t both be right!!
consider the loss of management time if the case proceeds to a full
trial
consider the advantage of achieving certainty of outcome on the day
of the mediation
calculate the cost if it all goes wrong at trial
consider if they wish to achieve privacy, maintained reputation,
restoring of relationship, etc
Consider whether you wish to send a confidential letter to the
mediator
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25. Chris Makin mediator
On the day
Introductions
Opening statements
Private meetings – be fully frank with the mediator
Let him help you find the “gold dust”
You will spend a long time waiting
Don’t have any evening commitments
Keep faith in the mediator and the process, even
when you feel you are getting nowhere; there is
always a low point, usually leading to sunny uplands
Remember that 65-85% of mediations settle
65-
And even if yours doesn’t, and even though
everything is without prejudice, you will have learned
an awful lot about your opponent!
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26. Chris Makin mediator
Now it’s your
turn to work!
Chris Makin FCA FCMI FAE QDR MCIArb
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