Complex case? Then use the mediator to assist in the process design.

I recall that mediation in the UK started in the 1990s with a period when those setting up mediations began by choosing the mediator and then involved the mediator from the early stages.  It hit a phase in the last decade when the choice of the mediator became entirely secondary to the fixing of a date convenient for the parties.

Mediations were treated as a commonplace procedure in which very little thought was given to choosing the mediator with the right skills for the dispute.  Complex commercial and international multi-party disputes would come forward with little or no opportunity for the mediator to shape or refine the process.  It would be quite usual for a mediator only to discover about other closely relevant and related disputes on the eve of the mediation or even at the mediation.   Thus a dispute on, say, a distribution agreement would turn out to have related IP disputes in several other jurisdictions, requiring an adjournment to allow all of the disputes to be drawn into an eventual settlement.  A breach of warranty dispute on the sale of a business would turn out to have a closely related share dispute in the purchaser’s jurisdiction and even other defendants to the same litigation who had not been swept up as part of the process because they were separately represented.  This would then often require an adjournment for other parties to become involved, relevant documents to be exchanged, etc.

We are still in this arena, to some extent, but I believe that we are on the cusp of recognition (or perhaps remembering what was once known) that complex cases require care and thought in the putting together of the process.  The choice of the right mediator should be the first step.  The second is that of involving the mediator at an early stage to ensure all the right ingredients when the parties meet.  Further down the list should be the nuts and bolts of finding a suitable date and venue for the mediation meeting.

Many complex cases would benefit from a preliminary pre-mediation meeting to explore the possibilities of process and the scope of the mediation.  Recognising the right cases for this approach requires the solicitors handling the immediate litigation to look up and see the broader picture at an early stage in their discussions leading to mediation.  In doing so, they would serve the interests of their clients much better.  In the context of a large commercial dispute, the cost of early involvement of a mediator is negligible compared to the overall costs of the litigation or of the parties’ own advisers in the mediation.  In such cases, confining the role of the mediator to the day of the mediation is a mistake, often arising out of a belief that the solicitor is doing the best job for the client by keeping the costs of the mediation to a minimum.  In reality, the clients’ best opportunity for settling multi-jurisdictional or otherwise complex commercial disputes is in the early involvement of the mediator in discussing how and what to get to mediation.  The mediator can then mediate as necessary between the parties as to the best route to take through a possibly complex web of litigation.