For many years I have been battling for clients through the Courts. It’s the forum for dispute resolution which was the focus of all my training and, in fairness, the system does work in terms of ensuring that the right cases win – that’s my experience anyway. So the first time it was suggested to me that mediation should be considered as a means of resolving one of my client’s commercial disputes, the suggestion met some fairly fierce resistance!

Earlier this year, as a complete convert to mediation, I decided to enrol on the CEDR Mediator Skills Training Course. I am pleased to report that, as a consequence, I am now a CEDR Accredited Mediator. My decision to follow this path to alternative dispute resolution (ADR as it is popularly known) followed a mediation which I attended two years ago as legal representative to a claimant in a personal injury action. In my usual litigious fashion, I had been butting heads with my opponent for about 14 months. More unusually, I had grown to dislike my opponent on a personal level. She irritated me, without fail, on every occasion we spoke on the telephone. With the benefit of hindsight we both tried some point scoring which, though dressed up as tactical ploys, did little to progress the action for my client nor my opponent’s insurer client. I think the District Judge charged with managing the case sensed the unhelpful animosity. I say this because, for the first and last time in my experience as an advocate before this particular District Judge, I was invited (quite firmly) to consider the possibility of mediation before the next Case Management Conference.

I told my client that we should take up the invitation because he could be penalized on his claim for costs if we refused. However, I also told my client that it would be a waste of time; that the matter would proceed to trial where we had very respectable chances of winning; that my opponent would not concede anything in mediation so she would have to be told the position by a Judge. My client accepted my views unreservedly and, begrudgingly, off we went to mediation about four weeks later.

By lunchtime the case was settled. My client skipped to the pub. I joined him but was somewhat unsettled. How had the mediator created this jubilation in less than 4 hours when I had battled my client into deadlock over a 14 month period? I tried to analyze the mediator’s success and decided that his skill was just in charming the socks off everybody. By being everybody’s friend, he had managed to persuade everybody (I thought “hoodwink” in my more cynical moments) to do what he wanted them to do. I admired the mediator’s skill but, by using this charm offensive, I believed (or thought I believed) the mediator had conned my client into giving up a strong position. Now I realize this was not my true belief at all. Buoyed by the fact that my client is as happy and grateful now, two years on, as he was as we left the Mediation, I do not think my client was hoodwinked into giving up ground at all. I was just jealous that the Mediator, and not me, had created this situation, effortlessly it seemed, where my client received what he still believes to be a fair level of compensation for his injuries. It was that acceptance of my own jealousy which led me to CEDR. I could also charm people into compromise I thought!

What was the biggest revelation for me arising from the CEDR Skills Training Course? It is that the Mediator which brought me on this journey was even more skilled than I gave him credit for. Being charming and warm is a great start but it really is just that: a start! The various new dynamics which a mediator brings to a negotiation (or a stalemate more usually) are too numerous to detail here. However the real essence of mediation is having a catalyst to find solutions rather than reasons to keep battling. Having an independent neutral (with absolutely no stake in the dispute or its outcome) committed to resolving the dispute there and then reaps incredible results in my experience.

I now have experience of many mediations. Just one, so far, has not resulted in a settlement. So if, like me, you have been somewhat precious about your own litigation skills or, perhaps, precious about the litigation process more generally as the true route to justice…just give mediation a try and I am sure you will soon be spreading the word as enthusiastically as me. If you are involved in a dispute and you want to explore ways of ending it quickly and effectively, I urge you to contact CEDR Solve at www.cedr-solve.com

Alternatively, contact me directly by calling 01494 582050 or emailing me at peter.coyle@cwd-law.com. I will happily explain more about the mediation services which my firm now offers.

For those of you with a thirst for more mediation knowledge, I suggest you try some of the following publications:

ADR and Commercial Disputes
General Editor – Russell Caller (2002) Sweet & Maxwell

Mediation: Principles, Process, Practice
Boulle, L & Nesic, M (2001) Butterworths

ADR: Practice and Principles
Brown, Henry & Marriott, Arthur (1999) Sweet & Maxwell

International Mediation – the art of business diplomacy
Carroll, Eileen & Mackie, Karl (1999) Kluwer Law International

The Promise of Mediation
Bush, R.A.B. & Folger J.P (1994) Jossey-Bass

Business Mediation: What you need to know
Coulson, R (1987) American Arbitration Association

Mediation
Noone, M (1996) Cavendish Publishing

Mediation in Context
Liebmann, M (ed) (2000) Jessica Kingsley Publishers

PETER J COYLE
NOVEMBER 2005