The panel, moderated by Ian Christie, was formed of members of the ADR Committee: James Bridgeman, Andrew Parsons, Claire Andrews, Jonathan Lux and Louisa Nye. The panel role played various mediation scenarios, acting (impeccably) in character in the colourful case of Ernest Pratt v Lady Cynthia Bracknell. As the mediation played out, the delegates were invited to offer their opinions on the best ways to deal with the various stages of the mediation.
One scenario gave rise to a discussion about the pros and cons of a joint opening session. The favour of the room seemed to be with avoiding such a session unless carefully managed. The experience of many in the room suggested that such a session can lead to greater entrenchment of positions. Some were of the opinion, however, that an opportunity for a client to ‘vent’ in an opening session can take some of the steam out of the rest of the process.
There was extensive discussion of when it is best for a party to make an offer, and whether you should ever start out with a ‘final offer’. It was generally agreed that there can be an advantage in making the first offer because that party can use the offer to establish the territory in the mediation, seizing the initiative to some extent by defining the areas to discuss. In fact, some practitioners thought it advisable to sometimes put a settlement offer in the position statement in order to help take control of the direction of the mediation by setting its parameters, as well as indicating to the other side the seriousness which you attach to the mediation. These views were necessarily caveated by a view of the strength of your case; a practitioner has to be realistic and sensible when judging what to suggest as an offer, and when to offer it.
An interesting topic for discussion was the appropriate thing to do in an instance when one party has damaging information on the other party which could significantly affect the balance of power in the mediation. It was thought that in some instances the use of this information could be appropriate, indeed it may well be information that the other side would want to know about. However, there is a real difficulty in knowing where to draw a line and parties have to be very careful about using certain information in a way that amounts to blackmail. Those involved in the discussion reiterated that it is for the lawyer to ensure that the client understands that boundary.
All in all, the session was an excellent and entertaining workshop that allowed for a very useful discussion of best practice in mediation.
Contributor Tom Crisp