In a Q&A session with Legalwise Seminars, Anthony Lo Surdo SC, at 12 Wentworth Selborne Chambers, Sydney, Lonsdale Chambers, Melbourne and Outer Temple Chambers, London, Abu Dhabi and Dubai, shares his insights into mediation advocacy. He will be delving further into this topic at the upcoming 10 Points on a Saturday and Saturday 10 Points in One Day.
What are some important considerations when choosing a mediator?
First and foremost, it is important to choose a mediator who has a reputation for being appropriately and sufficiently engaged in the process, is able to gain a good understanding of the issues and is able quickly to establish trust and rapport with the parties.
Parties should consider whether the training, experience and qualities of the intended mediator lends itself to the resolution of the particular dispute for which they may be retained. They should assess what model of mediation is best suited to the resolution of the dispute.
If the issues are reasonably well-understood, the settlement model of mediation, in which most mediators are trained may be best deployed. This has as its main objective to encourage incremental bargaining towards compromise at a central point between the parties’ original positional demands. It involves limited procedural or substantive intervention by the mediator apart from perhaps encouraging the parties to put their positions in a structured and rational manner.
However, many disputes, especially those involving multiple parties and which have a degree of factual or legal complexity, usually demand greater rigour from a mediator whose role may require assisting the parties to structure their negotiations having regard to the commercial, personal, reputational, emotional and other interests of the parties and an assessment of the litigation and costs risks associated with the dispute. A mediator proficient in either facilitative mediation or evaluative mediation techniques may be better equipped to assist the parties in achieving a workable resolution.
The facilitative mediation technique has as its object to avoid positions. Instead, it aims to determine the underlying drivers of the dispute and achieve an early platform for discussions which reflect the parties’ needs and interests instead of their strict legal entitlements. Disputes best served by such an approach include family, workplace, organisational, environmental, family provision and succession claims and some partnership disputes.
The evaluative mediation technique has as its objective to reach a settlement according to the legal or other rights and entitlements of the parties within an anticipated range of outcomes. Commercial, personal injury, professional indemnity, competition and consumer, building and construction, real property and some partnership disputes are best suited to the evaluative style of mediation. Mediators in this category are likely to be senior practitioners with expertise in the substantive areas in dispute such as senior counsel.
A thorough analysis of the nature of the dispute and the expected outcomes should dictate the choice of mediator.
What are some common misconceptions about mediation?
- Mediation is best attempted once the parties have completed their evidence and discovery or disclosure of documents has taken place.
Mediation generally occurs at one or more of the following times:
- when proceedings are compulsorily referred to mediation by order of the court;
- before litigation or, if litigation has commenced, before major steps in the litigation have been undertaken;
- when the plaintiff has prepared its evidence but the defendant has not; and
- when all evidence has been served and a court date has been set, or during the course of a hearing or arbitration.
Cases will settle if and when the parties are prepared to do so. It is usually at the stage where they can make a sensible and informed decision of the risks inherent with the alternatives.
- A party who makes offers consistently below the expectation of another is not negotiating in good faith.
A party attending mediation, especially one that may be Court ordered, is required to participate in good faith. Good faith incorporates an obligation on the parties to have a genuine and honest approach to the resolution or their dispute including to exhibit a willingness to consider options for the resolution of the dispute as may be propounded by the opposing party or by the mediator, as appropriate and to give consideration to putting forward options for the resolution of the dispute.
The fact that any offers that may be made by one party fall short of the expectations of the another does not, without more, evince an intention not to negotiate in good faith. It may and usually is reflective of that party’s assessment of risk.
- All mediators are the same
No two disputes are alike. Likewise, whilst mediators have the same basic level of training, they are not the same. Mediator selection is critical to the success of the mediation and requires careful consideration. And, like most things in life, you usually get what you pay for!
What should practitioners have in mind when documenting a settlement?
It is critically important that, wherever possible, the parties conclude a mediation by entering into an immediately binding and enforceable agreement that determines all matters in dispute.
In preparing for a mediation including its potential resolution, practitioners should consider not only the form that a settlement may take but also whether, eg, a likely resolution could involve stamp duty, tax or accounting considerations. If so that advice should be obtained before the mediation.
Too often, too little consideration is given to these matters with the result that a binding resolution is not able to be effected at the conclusion of the mediation.
This could lead to further protracted discussions between the parties over the details of the proposed agreement or to the settlement faltering.
How should practitioner deal with a difficult client at mediation?
A practitioner’s primary role is to manage the expectations of their client. In preparing for a mediation, a practitioner’s primary task is to help prepare clients for a mediation by:
- undertaking a risk analysis and linking risks to the client’s interests;
- explaining the nature of mediation;
- identifying the party’s interests; and
- developing strategies to achieve final outcomes.
The client should come to the mediation aware of a reasonable range of possible outcomes. However, flexibility together with a genuine intention to compromise is the key ingredient to any successful mediation.
What does the near-term future for mediation look like?
Mediation will continue to fulfil a vital role in the timely and cost-effective resolution of disputes. Its use will likely expand to address the myriad of disputes that are emerging from the pandemic including, for example, the business interruption and other claims that will be made on insurers.
Anthony Lo Surdo SC is an exponent of all forms of ADR and especially mediation, arbitration and expert determination. He is also adept at facilitating expert conclaves.
He is an internationally accredited mediator. Anthony is also an advanced and nationally accredited mediator. He has been ranked by Doyles Guide to the Australian Legal Profession in 2018, 2019 and 2020 as a leading mediator.
Anthony is a Fellow of the Chartered Institute of Arbitrators and registered in the Australian Register of Practising Arbitrators as a Grade 1 Arbitrator. He is also accredited as an arbitrator in Papua New Guinea and registered by the National Court of Justice as an international and domestic arbitrator.
He is regularly appointed as an arbitrator both domestically and internationally.
Anthony was ranked by Doyles in 2019 and in 2020 as one of the country’s leading arbitration Silks.
Although a general commercial Silk, he has been described by Doyles in 2011 and in 2015-2020 as one of Australia’s leading insolvency Silks.
He is also a leading, internationally recognised, sports law Silk.