Mediation – “In the middle of every difficulty lies opportunity”

As a consequence of successfully representing a client in a recent mediation, I was reminded again of the wise words of Albert Einstein:

“In the middle of every difficulty lies opportunity.”

The Dispute(s)

The dispute was a long-standing, complex and highly contentious dispute between an employee, his employer and the employer’s Private Health Insurance (“PHI”) provider.  In fact, strictly speaking, there were two different contractual disputes: one between employer and employee under the terms of a long term sickness scheme; and one between the PHI provider and the employer under the PHI policy.  The parties had already had one litigation, which commenced 14 years previously, and led to an interim settlement 7 years ago with another lawyer.  Then we were instructed to assist in pursuing a full and final settlement.  By necessity, further litigations were being progressed through a cumbersome court system not best suited for this type of three-way dispute.  Not surprisingly, the parties were finding it difficult to move from a stalemate position.  This is where this case was well-suited to mediation.

Mediation

For those who are unfamiliar with mediation, it is a form of alternative dispute resolution, which differs entirely from that of traditional litigation, where negotiation between the parties is facilitated by an independent third party (the mediator). Their role is to encourage/direct/facilitate the parties (depending on which approach one prefers) to find a negotiated resolution of their dispute.  The mediator does not decide the case, unlike a judge or an arbitrator.

Preparation

As the parties are the masters of the mediation process, progress of matters is in their hands, so preparation undertaken in advance is key.  In this case initial strategy discussions took place within the Litigation & Dispute Resolution Team, together with input from our colleagues in our Employment and Corporate Teams, who brought their invaluable experience to bear.  I have always found that this ‘pooling’ of knowledge and inter-disciplinary approach (with inevitable use of flipcharts etc) allows for creative, innovative and rewarding solutions to be achieved.   We then presented the flipchart presentation to our client, to provide an understanding of the analysis which had been undertaken of the strengths and weaknesses of the cases of each party and to ensure that our detailed analysis aligned with his expectations; and agreed the strategy for progressing the mediation, including the preparation of the Mediation Summary.  In my experience, if such detailed preparation is done beforehand, you are freed to find the creative and innovative settlement solutions at the mediation itself.  Otherwise, as Benjamin Franklin said, “By failing to prepare you are preparing to fail.”

The Mediation

We hosted the mediation in our recently expanded Edinburgh offices, where our client was immediately at ease, in an environment which he already knew.  The day commenced with initial party meetings with the mediator, John Sturrock QC of Core Solutions, (in my view, Scotland’s leading and best mediator, with whom I have worked on many occasions).

Innovative Approaches

One of the key approaches, sometimes not fully appreciated by those who have not given mediation a chance, is that it is very important to set the tone of the negotiations early on in the mediation, or otherwise it is difficult to find some form of consensus to reach a satisfactory negotiated resolution.  In this case, that was initially facilitated on the day by an initial informal plenary session hosted by the mediator, where introductions were made between the parties, their representatives and the mediator, over breakfast rolls and gluten free pastries.

Thereafter, (as we had discussed and agreed with our client and the mediator), our client was invited to make a short personal statement as to how the dispute had affected him, reinforcing to all parties the human element of the discussions which were to take place.  This was particularly compelling, when our client explained he had been working in his particular industry for 44 years, (of which 38 years had been with the company in the dispute) and produced a picture taken of him as a teenager at a fashion shoot carried out at the employer’s premises in 1967.  With some further explanation of the very significant impact that the dispute had on his personal life, this set the scene for proper, focussed negotiations, with appropriate ‘buy-in’ – even from the other protagonists in the dispute(s) and their advisers.

“Could a greater miracle take place than for us to look through each other’s eyes for an instant?”  Henry David Thoreau

After a short break, we delivered our position to the client’s employer (which served to supplement the Mediation Summaries exchanged by each of the parties ahead of the mediation) and focussed on the elements we considered were capable of agreement; and the remaining areas of dispute.  It was then for both us and the employer’s representatives to present matters to the insurer’s representative.  Again, the use of flip charts was particularly helpful here, helping to simplify and focus matters down to the real issues between the parties.

Successful Outcome

After a short break for lunch, the settlement discussions began via the mediator.  By early afternoon, we had a clear indication of a willingness to find a negotiated resolution; by early evening we had agreement reached in principle; and by approximately 9.30pm, the parties had agreed a settlement, drafted and signed a Resolution Agreement to reflect the terms.  The process of implementing the Agreement has now been engaged, which will enable the client to focus on important matters in his own life.

How to make the Mediation a Success

In my view, the positive conclusion of a mediation is dependent on three important factors:

(1) extensive preparation before the mediation, including analysis of strengths and weaknesses; analysis of Best Alternative to Negotiated Agreement and Worst Alternative to Negotiated Agreement; and the strategy to be engaged prior to and during the mediation itself;

(2) the choice of mediator, who can employ their own skill-set and approach as a catalyst for a positive outcome.

(3) the willingness of the parties to engage with the process and work together in order that a satisfactory solution can be reached;

Further Advice

Whilst mediation is not a cure-all for every dispute, it is fair to say this case was a perfect illustration of the fact that such a positive outcome would not have been possible through the traditional litigation processes – at least, not without extensive cost, anxiety and delay for the client in this particular case.  We will always consider the various options open to parties, and engage the diverse skill-set which Gilson Gray has to offer to help secure settlement of disputes, where possible.

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For More Information Contact:

Iain Clark
Mobile: +44 (0)7908 022 304
Direct Dial: +44 (0)141 530 2025
Email: iclark@gilsongray.co.uk

Alex Garioch
Mobile:  +44 (0)7841 921 685
Direct Dial: +44 (0)141 530 2041
Email: agarioch@gilsongray.co.uk

Rosie Walker
Mobile: +44 (0)7841 921 684
Direct Dial: +44 (0)131 516 5374
Email: rwalker@gilsongray.co.uk

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The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.