Mediation - a brief summary Rhys Clift Mediator and maritime lawyer Rhys.Clift@thomascooperlaw.com www.seamediation.com

Outline What is mediation? How does mediation differ from arbitration and litigation? When should mediation be used? Why is mediation not used? Is mediation effective, why? Conclusions

What is mediation? Independent third party (mediator) assists parties to resolve disputes A form of ADR, Alternative Dispute Resolution Facilitative (no decisions/opinions, reality testing) Evaluative (decisions/opinions) Facilitative mediation probably the dominant form Probably now an integral part of litigation (and arbitration?)

How does mediation differ from arbitration and litigation? Features of arbitration and litigation Compulsory, control of process and outcome Decision making – Judge/arbitrator Enforcement (Privacy, arbitration only, but indemnity, appeal and enforcement?) Potential disadvantages Slow Costly Adversarial Risky

How does mediation differ from arbitration and litigation? Voluntary (compulsion to mediate suggested by some) Without prejudice Private and confidential (mediation agreement) No orders No Judgment/no award Advantages Quick Inexpensive (compared to the cost of legal process) Collaborative Reduces risk

When should mediation be used? When both or all sides to a dispute recognise they have an incentive to settle. Varies After Letter before Action (claims/counterclaims)? After exchange of pleadings? (issues narrow) After disclosure? (evidence emerges) After witness statements? (evidence clearer) After experts reports? (opinion evidence now visible) After award or Judgment? (determination) Even before or after appeal? Usually used in parallel to arbitration/litigation (the velvet glove on the iron fist)

Why is mediation not used? Early reasons Lack of knowledge or familiarity Not recommend by legal advisors Clients have no dispute resolution policy Industries have no collective dispute resolution policy Now - mediation (very) well established and widely used in maritime disputes, bi-partite and multi-partite

Is mediation effective, why? Anecdotal evidence: 75/85% cases settle, of which 40% on the day? 60% thereafter (days/weeks)? Independent third party (mediator) – the key Interests and needs, not rights and wants Participation of decision makers (clients) Timetable structure and dynamics which negotiation lacks

Is mediation effective, why? Shared sense of purpose Scope for unusual deals Substitute day in Court with reduced risk and expense Minimises risk of damage to relationships Minimises risk of damage to reputation

Conclusions Mediation works and cases settle – 75/85% Mediation is a skill, repays understanding and preparation Process is widespread (in maritime disputes) and here to stay Standard mediation clauses and standard mediation procedures now widespread Mediation may not be for all cases, but enormous scope

Mediation – a brief summary Rhys Clift Mediator and maritime lawyer Rhys.clift@thomascooperlaw.com Tel: + 44 (0) 20 7390 2222 Mob: 07713 488019 www.seamediation.com