1. Mediation - a brief summary
Rhys Clift
Mediator and maritime lawyer

2. 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

3. 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?)

4. 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

5. 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

6. 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)

7. 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

8. 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

9. 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

10. 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

11. Mediation – a brief summary
Rhys Clift
Mediator and maritime lawyer
Tel: + 44 (0)
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