Mediation – Does it work?
One of the most frequent questions we get asked regarding mediation is whether or not it works.
Partner Paul Bennett first trained as a mediator in 2012 specialising in civil and commercial mediation, then in 2013 qualified in employment mediation. Paul’s experience is that mediation does work, based on his experience both acting as an advocate for clients in mediations and acting as a mediator.
Paul’s preferred mediations are partnership or shareholder disputes; for matters that already have proceedings issued either before the High Court or in arbitration, and less frequently before the Employment Tribunal in relation to workers’ rights. In Paul’s experience knowing those practice areas inside out helps him work with the legal teams involved to find the often-obvious solution that has been lost in the hurley-burley of the dispute and litigation process.
Partnership and shareholder mediations are always about trust, relationships and the personal feelings of the parties. Most shareholder mediations are not about PLCs, but rather small privately owned businesses where some of the parties probably work in the business and perhaps some of the parties have invested in the business to support its potential growth.
Paul’s most recent partnership mediation involved what could be described as a cultural asset in a provincial town. A wealthy investor had supported the cultural asset because it was the right thing to do and it reflected their wider beliefs. The party who was running the cultural asset was perhaps well intentioned but uncommercial. Inevitably investing money into something that was going to lose money was unsustainable.
The existence of a partnership or shareholders’ agreement helps but is often not determinative because, if it were, the parties would have settled it before instructing a mediator. It is therefore about what is acceptable to the parties to enable them to feel comfortable and achieve a win/win outcome. By contrast, in litigation there is only a winner and a loser, with the loser ordinarily paying the winner’s costs.
In mediation all options are open, including of course resetting the parties to their intended original positions before the distractions of the dispute got in the way. In workplace mediations this is common; we set a framework with the parties for how they can rebuild trust, how they can interact and go about rebuilding a relationship that works for them. By contrast in civil and commercial mediations it is normally about the exit route and the cost of that exit route to the parties.
Over the years Paul has carried out around 50 mediations and has a settlement rate of over 90%. So mediation works. Paul has also acted more frequently as a mediation advocate; he previously set up a pilot project offering mediation advocacy as a service which took off and, in that sphere, the settlement rate was closer to 100%. Paul stopped offering the service when he moved firms because managing other lawyers got in the way. It is however something that Bennett Briegal offers so if you are a solicitor reading this and thinking:
“Shall I instruct counsel?”
then you could think:
“Shall I have a conversation with Paul Bennett and see if he is free to act as our mediation advocate?”
The key is that, whether acting as an advisor to the parties, a mediation advocate or as a mediator, that mediation works. Note that whilst mediation works, the parties also have to engage properly, openly and honestly with the mediator. If they are committed to resolving the dispute on the day and prepared to compromise, mediation is a wonderful tool.
With parties who appear unwilling to compromise, the skill of the mediator of course then shows because he or she has to reframe the dispute for the parties so that they understand the self-destructive tendencies they are displaying. One of the things Paul enjoys most about mediation is when the reframing process, which can take a number of hours, bears fruit and one of the parties who was unreasonable or unrealistic, sees a solution.
If you would like to talk about either appointing Paul Bennett as a mediator or as a mediation advocate contact us at Paul@BennettBriegal.co.uk or 07785 623644.