Henrietta Jackson-Stops quoted in CDR article

IPOS Mediator and Partner Henrietta Jackson-Stops has been quoted in CDR's latest article on mediation:

"Domestic courts have also endorsed mediation as a way to ease their own delays. Last year’s much reported England and Wales Court of Appeal rulinginChurchill v Merthyr Tydfilconfirmed their right to order mediation, a ruling described by mediatorHenrietta Jackson-Stopsas “a really big deal”.

Not uncoincidentally, litigation is further ahead than arbitration when it comes to this, in part because of the cost sanctions available for failure to comply, perhaps because courts are more worried about quick resolutions.

Jackson-Stops, a partner withIPOS Mediation, says that “the government and the judiciary are all talking about it a lot more” adding that she has seen an increase in court-supported mediation, though she is “not sure necessarily we’ve seen a change in practice by the actual lawyers. But there are more people interested in becoming mediators”."

"In litigation and arbitration, parties communicate via lawyers on points of law. “Mediation is often when the parties actually meet each other for the first time,” says Jackson-Stops. “We’re trying to understand the needs and wants of the parties and trying to find a way both parties can listen and hear each other in a productive way.”

“Psychology tells us that we do deals with parties we like and so it is important to try to build a positive relationship with the other side. That’s a very different mindset to old-fashioned litigation where you fire off these aggressive letters to each other,” she continues. “Where mediation comes in is facilitating that conversation between the parties, which may or may not result in settlement, but will certainly clarify a lot of a lot of issues between the parties.”"

"Those include a requirement that mediated settlements comply with the 2018Singapore Convention on Mediation, a treaty that has beenlargely well received, with 57 signatories as of this year and which aims to do for mediation what the New York Convention has done for arbitration, guaranteeing enforcement and adding international credibility.

Bar-Yaacov welcomes these “very helpful” developments for making mediation more widely available. Jackson-Stops however, is against going any further. “As has happened in arbitration, we run the risk that the codification of mediation allows the lawyers to challenge the procedure,” she says, arguing that the existing standards set by institutions such as the Civil Mediation Council in the UK are enough, along with the European Code of Conduct for Mediation Providers more broadly.

She puts the onus on judges to resist the regular challenging of decisions which has become commonplace in arbitration and adjudication. “We need the judiciary to understand and stay firm on the fact that this is a without prejudice, confidential process and also that the settlement is the parties’ settlement agreement. It is not the mediator’s decision.”"

"However, the real mindset change yet to come is moving past mediation only in the context of litigation or arbitration, towards mediation in its own right. Jackson-Stops is wary of multi-tiered dispute resolution clauses, which lay out the mediation process from the start, despite allowing the mediator to set up an optimal process, as “the risk is you go to mediation too early, it doesn’t work and then it’s harder to get everyone round the table further down the line”."

"“Every mediation has value because you’re going to learn something about the other side,” agrees Jackson-Stops. Although parties sometimes object to the additional cost, it is usually only a fraction of the amounts being spent on litigation or arbitration and with a success rate above 80%, the chances of a settlement are good, and “the lines of communication have been opened”.

UK governments have made fresh commitments to alternative dispute resolution roughly every 10 years since 2001 so Jackson-Stops is not getting carried away. “It’s becoming more central to the conversation. But I still think we’ve got quite a long way to go.”

Ultimately though, she is evangelical about the process being better for all parties. “It is surely better to all get around the table and have a conversation facilitated by somebody who’s got no skin in the game, than fighting it out and taking a chance that a judge or arbitrator will see the case your way and disregard the other side completely.”"

You can read the full article here.