The essence of mediation - 16 April 2002 - Jim Franks
reported
by Roger Clarke
For our April meeting we were instructed and entertained with an
authoritative pres-entation by Jim Franks on the subject of mediation. Jim
Franks is both an experienced mediator himself in construction and property
disputes and a cofounder and director of Disputes Resolved, which
provides mediation services country-wide through a panel of accredited
mediators.
Jim Franks began with a talk on mediation in Britain, which he believes
is an increasingly popular technique for resolving disputes. His advice to those
with a dispute was always to try mediation before resorting to arbitration or
litigation. In his experience mediation succeeded in more than eight out of ten
of disputes. The most difficult part of the process was getting the parties to
the table; arranging this could require more than 40 separate steps and take
several weeks, though meetings within one or two weeks of first enquiry were
sometimes possible. Meetings rarely lasted more than one day; but that could
not be guaranteed. Because of this uncertainty, the expense of overnight
accommodation, and the difficulty of arranging it at short notice, Disputes
Resolved usually engage media-tors practising near the place of dispute.
The process normally began with an enquiry from one of the parties. In
most cases one party started out much keener to try mediation than the other.
The first challenge was to persuade the second party to go along with the idea.
Once a meeting was arranged Disputes Resolved would provide a pack of
documents for the parties (and the parties’ representatives, if any). This
would include a leaflet explaining the process and pointing out to the parties
that it is they who must reach agreement: a solution would not be handed down
to them by the mediator. Each party would be asked to sign an agreement that
they would not use material that came to light in the mediation in any
subsequent litigation. The mediator would also be provided with a pack
including a checklist of tasks as an aide-mémoire.
Procedure, of course, varied from case to case. Once the parties had
agreed to mediation, Disputes Resolved required statements from them by
a certain date, exchanged them between the parties, and provided them to the
mediator at least two weeks before the meeting. They preferred the parties’?
statements to be in the form of a concise ‘wish-list’, drawn up in single-line
bullet points. Their object was to inform the mediator of the scope of the
parties’ differences and to clarify for the parties’ own benefit their
respective expectations.
Mediation was concerned with the parties’ interests (eg in preserving
business relationships) rather than their legal rights. The mediator’s role was
to help the parties reach agreement, not to propose or decide solutions for
them.
Jim Franks preferred parties’ legal representatives to accompany parties
to meetings, but the cost of this had also to be taken into account. In
arranging meetings a date was usually fixed more quickly if Disputes
Resolved contacted all the parties and solicitors rather than asked the
solicitors to do so.
Normally the mediator would first hold a round-table meeting with all
the parties, then have private sessions with each party. The parties might
again meet together with the mediator later to confirm what had been agreed. In
some disputes – often those between neighbours – the opposing parties refused
to meet each other. In cases like this the mediator might deal remotely, asking
each party for their wish-list and then talking or corresponding with them
separately. Jim Franks recommended setting time limits for mediations such as
this, because otherwise the parties’ reluctance to agree even on trivial
matters could protract proceedings indefinitely.
Disputes Resolved charged set
fees, usually by the value of claim. Parties normally shared the cost; but if a
party had legal insurance the insurer might pay. Disputes Resolved
normally asked for an advance payment of £250 from each party at the time when
the parties agreed to mediate, this being part of the total fee.
At this point Jim Franks invited questions, which brought out the
following points:
l Mediation
could not succeed unless the parties wanted it to.
l Mediation
was particularly useful in cases with a multiplicity of parties; it was less
easy for arbitration and litigation with their traditionally confrontational
procedures to provide the mechanism for a settlement balancing the interests of
three or more parties.
l It
was often only during mediation that the parties first understood the strength
of the other parties’ arguments. This came out not so much in the wish-lists
circulated in advance as in the meetings themselves.
During
the final stage of the meeting Jim Franks showed us a case study on video. The
mediator’s role, both in the initial round-table meeting and in separate meetings with the parties afterwards,
was to get them all to realise their common interest in arriving at an early
solution and to persuade each of them to contribute something – either in money
or in services – to enable an early solution to be implemented.
Jim
Franks gave us all a thoroughly interesting and illuminating evening,