Great Article

Keith Strutt – Operations Director, Driver Group London 1.1 THE QUESTION Discuss the differences between negotiation and mediation. When to employ negotiation and/or mediation? Discuss advantages and disadvantages of these two ADR mechanisms.

1.2 OBJECTIVES

1. The intention in this essay is to set out briefly the origins of negotiation and mediation (insofar as either has a defined origin) and explore the common ground between them. From this it will be possible to define the differences and, thereby, discover the contexts within which each will be most effective. Each, both generally and within its own context, will have advantages and disadvantages that will affect its choice as a method for Alternative Dispute Resolution (ADR) and it is proposed that these are examined to provide a contextual framework within which to assess and apply each.

2. As negotiation and mediation are practical examples of a type of self help approach – to a greater and lesser extent respectively – to the settlement of disputes, it is suggested that the circumstances within which they can be most effectively used can be best illustrated with examples, examples from the authors own experiences are given to illustrate the themes covered.

2 NEGOTIATION

2.1 WHAT IS NEGOTIATION?

3. Negotiation is a noun for the verb to negotiate; to try to reach an agreement or compromise by discussion. It can also mean to obtain or bring about and objective by negotiating, to find a way over or through (an obstacle or difficult path) or to transfer (a cheque, bill, etc.) to the legal ownership of another1. Humans experience negotiation almost throughout our lives, from the first stirrings of communication with our parents through the full panoply of interactions with other humans for the remainder of our lives.

4. It is tempting to think of negotiation purely as a part of a commercial process or dispute resolution, but it is much more than that. The subsequent definitions in the paragraph above hint at objectives and obstacles, but these are only the purposes’ to which negotiation is put. I would suggest that, at its heart, negotiation is a tool for learning and teaching ourselves, through interaction, about others expectations and the value of our own, by allowing us to appreciate the context which affects the information that is communicated between the parties and the effectiveness of the communication. Within the context of ADR negotiation is a form of communication that has a definite objective; to resolve the dispute. It is also a process that will be successful if it overcomes or finds a way around or through obstacles.

5. Negotiation is perhaps the freest form of consensual self help and party autonomy in the settlement of disputes and, it is suggested, should always be the first step in the resolution of any dispute. Negotiation is a process two or more humans undertake when they realise that communication is necessary to arrive at an accommodation on some point of mutual interest.

6. The true existence of a dispute, or the falsity of the perception of a dispute that is not actually there, will only become apparent once negotiation has been attempted.

2.2 THE NEGOTIATION PROCESS

2.2.1 Conditions for Negotiation

7. It is tempting, as negotiations can break out at any time and in any place between any number of parties, to assume that negotiation as ADR is an exercise in free for all discussion and argument; this is decidedly not the case. Even if it is not immediately obvious there are a number of conditions that are required before negotiations can begin. The following are a mixture of necessary and desirable conditions for negotiation:

i. Identifiable parties (or their agents); clearly two or more parties are required to begin a negotiation.

ii. A subject of mutual interest; the parties must have and be aware of, a mutual interest or dependence. This is the main driver for negotiation; if there is no mutual interest or dependence on the other then there is no real reason to negotiate.

iii. Willingness; until all parties are willing to negotiate it will not happen (see sub paragraph i above regarding the use of intermediaries).

iv. The desire to agree; (if possible). The desire and need to agree must be present along with the resources to enable it to happen.

v. The most attractive solution; the alternatives, such as doing nothing, need to be recognised by the parties as much less desirable than the option of negotiating, often referred to as each party’s BATNA2. This is generally not that difficult as negotiation can be, in comparison to almost any other forum for the resolution of a dispute, low cost in time and money.

vi. Tempus fugit; it helps if the willingness is enhanced by the need to agree imposed by some external time deadline.

vii. An enforceable (if necessary) agreement; the subject must be one that is negotiable; either from the point of view of the parties or from the point of view of some supervising third party. To enable the negotiations to succeed the negotiators must have the authority to agree – and bind – themselves or the organisation they represent.

8. Circumstances and context are critical in any negotiation. The above list, while not exhaustive, contains elements that are common to many of the negotiations that the author has undertaken; the essential or optional nature of any of them will vary depending on the circumstances.

2.2.2 Stages of Negotiation

9. As set out in section 2.2.1 above, negotiation has a set of circumstances within which it takes place; however, these circumstances are unlikely to occur in isolation. It has been suggested that negotiation has a distinct set of phases3. Within these phases the circumstances can occur in any order and in any combination.

10. These phases of negotiation reflect the interactive and unstructured nature of negotiation. This is not to suggest that no negotiations have structure; some clearly do but even within the most structured of negotiations, as the process of communication takes place and the voyage of discovery of the other party’s position (and your own) occurs, the phases can overlap, swap and even reverse or go through multiple iterations as new information comes to light. In general then the phases are: –

i. Pre-Negotiation – Identification of a shared interest, requirement or dependency and selection of a forum or medium for successful communication;

ii. Conceptualisation – Identify and communicate each party’s position and understanding of the subject in question;

iii. Bargaining – each party evaluates their own and the perception of the other party’s position and communicates their preferred solution (the bargaining phase); and

iv. Settlement – reaching and recording the agreement.

2.2.3 Application

11. As previously mentioned negotiations are an example of unfettered party autonomy and can occur at any time. Negotiations should be the first step (once the realisation that doing nothing is not without cost and risk and will probably be worse) in the resolution of any dispute. One of its benefits is its ubiquitousness in that everyone is familiar with the process even if they are not necessarily fully aware that they practice it every day.

12. The question of when to apply negotiation to the resolution of a dispute would appear at first to be solely a question of why you would not. It is most likely the most cost effective form of dispute resolution; it requires no specialist advice or training to undertake (although both, as part of the process of preparation, are highly advisable). It is as flexible as the parties wish to make it, can occur at any time and, as an expression of almost pure party control and autonomy, it can supersede any other forum.

13. It is not uncommon in the authors experience for a negotiated settlement to occur: on the steps of the court4, in the court, during a court recess or after judgement; particularly if the losing party has not the funds to pay and an agreement on what they are able to deliver can be much quicker, cheaper and with a higher chance of success than attempting enforcement of a court order or arbitration award while standing in a queue of unsecured creditors.

14. Negotiation can occur during arbitration, to enact a speedy and less costly settlement, to enable settlement of a dispute after final award when enforcement is likely to be costly and/or time consuming.

15. In fact it is possible for negotiation to occur at any time that the parties consider that, given the information now in their possession, negotiation is an acceptable alternative to whatever dispute resolution process they are currently in (assuming they have kept an eye on the ever changing circumstances and its effect on their BATNA).

16. The requirement for a successful negotiation is a willingness to communicate and a desire to settle. Much is made of various negotiation strategies; two main strategies have emerged: competitive and problem solving. Simply, they treat the negotiation process as either a contest, where the object is to give as little as possible and gain as much as possible or as a joint problem to be solved with a joint solution.

17. It is suggested that the competitive approach, makes the finding of a mutually acceptable solution much more difficult5. A problem solving approach is much more likely to result in a mutually acceptable outcome but requires much more openness and trust6.

2.2.4 Advantages

18. Chief among the advantages of negotiation is cost. While nothing in dispute resolution is completely cost free (with the possible exception of avoiding it in the first place, although this can also entail a cost arising from the additional initial work necessary) negotiation as a central part of human negotiation is at least familiar and fits in with the general processes of life.

19. Negotiation is also almost certainly the quickest form of dispute resolution. Dispute is not part of the productive operations of any commercial organisation; even an organisation specialising in dispute services, does not gain from disputes with its customers. The speed inherent in productive negotiations comes from the familiarity with the subject and personnel involved in the dispute and the general access to the subject and each other. Speed has two benefits: the ability to recognise and react quickly to disagreements or disputes and resolve them before they grow and the clear benefit of being able to reach a resolution enables you to concentrate on the purpose at hand. Time spent disputing is non-productive and wasteful.

20. The parties are face to face (figuratively if not always literally), a position that they inhabit throughout their normal dealings. This can carry great advantages in: familiarity with each other aiding communication, familiarity with the subject of the dispute and the minutiae of its gestation (which will, if nothing else, inform the discussions). Familiarity with the process, the individuals, organisations and the subject will increase the options for a settlement – providing that the parties wish to settle.

21. Flexibility is inherent in negotiations; the parties, while they may have to make efforts to meet and discuss, are not at the mercy of a third party organisation or individual for the timing of their discussions. Indeed, it is not necessarily a requirement of negotiations that they meet at all. Negotiations are flexible enough to be carried out by telephone, conference call, internet or correspondence.

22. The negotiations are inherently private, unless the parties choose otherwise; there is no automatic access to the substance of the negotiations by the outside world.

2.2.5 Disadvantages

23. Nothing is perfect and negotiation is no exception. As is often the case the strongest advantages can be the source of the greatest weaknesses, and while lower cost is always a better option (all things being equal), flexibility and speed can be double edged swords.

24. Speed is normally a positive thing in any dispute resolution process (see above); however; when it comes at the expense of a fair hearing of both sides’ views and therefore the opportunity for each to come to an internal resolution of the dispute, dissatisfaction and resentment is likely to be the result. If a party cannot reconcile the outcome internally the dispute can re-ignite.

25. In the same vein flexibility can be misused by one party to the detriment of the other. Speed – in the form of ambush – and power in the negotiations can lead to an unbalanced settlement7. The inherent flexibility of negotiation means that it is essentially unregulated, and in the absence of regulation the natural power of one party can be used to influence the settlement to the detriment of the other, leading to resentment and perhaps difficulty in enforcement8.

26. Negotiations, while normally private, are not privileged unless agreed to be so. It is possible for the substance of the negotiations to be used subsequently and it is also entirely possible for them to create binding circumstances that restrict the later actions of the parties9.

27. Negotiation can end as quickly as they begin. As a consensual process the parties to the negotiation can leave at any time and as a very personal process, cultural differences can also have a very large effect on the possibility of success any negotiations. As communication is to a large extent non-verbal10, relative cultural differences can be devastating to successful communication even when the most conciliatory and deferential approach is taken. The danger presented by these differences can be obscure and a serious problem for the unwary.

3 MEDIATION

3.1 WHAT IS MEDIATION?

28. Mediation is a noun for the verb to mediate; it means that a third party attempts to settle a dispute between two – or more – other parties; it can also refer to a medium for a process or effect 11.

29. Mediation is not a recent phenomenon, evidence of mediation has been found in the records of many ancient societies including the Ancient Greeks and Romans12, and is used in China to the present day13. There appears to be considerable evidence for the development of mediation in many human societies independently14.

30. It is possible, when considering one’s own experiences, to recall incidents of mediation throughout all walks of life: from the neutral third party intervening in a dispute during a ball game in a children’s playground to friendly (and perhaps not so friendly) differences of opinion in the work place.

31. Formal mediation15 has become an attractive alternative to the conventional route of dispute resolution through the courts16. This reaction mainly to the ever increasing cost and time of litigation and the disenfranchisement of the general populace that this caused17. A similar, if much later, point was made in support of ADR (and by implication mediation) in general by Lord Woolf and his report ‘Access to Justice’18.

32. The Centre for Effective Dispute Resolution’s original definition of mediation was: – “… a voluntary, non-binding, private dispute resolution process in which a neutral person helps the parties try to reach a negotiated settlement”.

33. This was revised on the 1 November 2004 to: “… a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution.”

34. I include both as they each capture an element of mediation that is perhaps lost in the other. Formal mediation is a voluntary, non-binding but flexible process for the resolution of disputes. A third party is engaged by the parties to assist them to negotiate in a non-adversarial way; however the parties maintain equal control of the process, the decision on whether to settle and its terms. The mediator, helps to create an atmosphere within which the parties can communicate, helps to break deadlocks, avoid direct destructive confrontation and ultimately gives written form to the substance of the parties’ agreement. Mediation is often referred to, quite rightly, as assisted negotiation, and this essence neatly captures both the form and function of mediation.

3.2 THE MEDIATION PROCESS

35. Mediation can be undertaken in any kind of forum, although in the authors experience the more complex the dispute the easier it is to resolve if the parties are in the same physical space at the same time19.

36. Mediation is, at its heart, a process of communication that is assisted by a third party and as such requires only that the parties wish to settle and a secure medium for communication. The communication can take place directly between the parties, with the mediator observing and assisting the flow and constructiveness of the communication; it can occur directly between the mediator and either party, alone or as a group. It is rare that only one approach is used, generally all options are used as the dispute, moves through the various stages; the more contentious issues often requiring separate caucuses, the issues where the parties are not in fact too far apart are often concluded in face to face sessions with the mediator chairing the discussions.

37. While the author has been involved in mediations as conference calls and as electronic mail exchanges, it is the traditional single venue over a single or series of days that is most common for the most complex of disputes.

38. Attention to the venue can bring many benefits; a comfortable and well served environment is much more conducive to agreement than a cramped and unwelcoming one. The process of mediation, particularly those with separate caucuses, can involve long periods of not much happening. If boredom or frustration set in it can have a marked effect on morale and the possibility of agreement20.

39. It is often helpful when preparing the agenda for the mediation to look carefully at the positions of the participants and construct a running order that places early emphasis on the contentiousness of the matters. After the opening statements, beginning face to face discussions on subjects that the parties can, without much effort, agree on can help to create an atmosphere on which the parties are agreeing. This will often gather its own momentum and the participants develop a mindset of agreeing which obtains its own momentum. The mediator can use this momentum to bring the parties along with the general flow of agreement. Even when serious sticking points or disagreements are reached, it is possible to skip them with an agreement to consider more fully in a recess period and come back to it later; this is still agreement and can be helpful in maintain an atmosphere of cooperation.

3.2.1 Conditions for Mediation

40. Mediation can, like negotiation, breakout at any time; it is a consensual process, which in essence, requires only the consent of the parties to take place. If during the process of disputing in court, arbitration or any other formal dispute resolution forum, the parties decide to attempt to settle their dispute with the assistance of a mediator, they are free to do so21.

41. The settlement of disputes by mediation is actively encouraged by most states across the world22.

42. Given the prevailing support from various bodies (see above), a large part of the legal community (see notes 14, 15 and 16 above) and the perceived speed and low cost of the mechanism it is small wonder that mediation has grown in popularity with hard pressed litigators

43. The benefits of mediation to overworked court systems have not been lost on the public funders of judicial services across the world. The reduction in drain on the public purse by the simple expedient of encouraging parties to settle their differences – in a self funding process – while improving access and speed of resolution is most likely seen as a vote winner.

44. It is not unusual during the preparation and disclosure stages of litigation for the parties to become more open to settlement. These stages are very much akin to the conceptualisation phase of negotiation, albeit that the communication has been compelled by the dispute resolution forum. The knowledge gained about the other party’s position and your own relative strength, can often leads to the right conditions for mediation to become a desired option. This is assuming that the information is received and understood and its effect on each party’s relative BATNA assessed.

45. Mediation, in the modern form, is more formal than negotiation; the formalisation having much to do with its acceptance and promotion by institutional bodies who are concerned with the robustness of the process and the regulation of mediators. Courts in particular are keen to ensure that something seen as an adjunct to the court process should be suitably formal and that its conduct generates the appropriate confidence in its users and the public. If it is going to receive official backing, and be successful in providing saving in the public purse, it must engender confidence in the wider (voting) public.

3.2.2 Advantages

46. Mediation in general has a number of advantages over third party resolution of disputes. It is consensual, flexible, fast (comparatively) and low cost (again comparatively); as the control of the process and its resolution does not lay with external bodies, but with the parties they are, in my experience, more comfortable with the process.

47. The process requires consent at all points to succeed. Even in the case of one party having to enforce an agreement to mediate23. A prior agreement to mediate clearly has to exist for the enforcement to succeed; agreement that would have required consent. The consent can be the basis for agreement (see paragraph 39 above regarding the use of the running order and the spirit of agreement).

48. The process is flexible; in essence, while preparation is necessary, it is possible to arrange a mediation hearing within a few weeks, and even less for conference call and video conference versions. The degree of flexibility is generally only limited by the parties’ willingness to cooperate (given suitable support from the mediator). Flexibility also extends to the way and how much of the dispute is settled. It is perfectly acceptable for the parties to remove many of the items in dispute by agreement in mediation, even if some remain for third party determination.

49. This flexibility is also reflected in the speed with which things can be settled. A carefully worded settlement agreement can, if it deals with all aspects of the dispute settlement, monitoring of the agreement and the ability to repair any problems in the compliance procedures, can maintain the momentum for a successful conclusion, without the need for time consuming enforcement proceedings. This is in addition to the general benefit of speed that comes with not being dependant on a third party institution or statutory determiner.

50. Cost is in the direct control of the parties; their desire to settle, their cooperation with the mediator and the process, can make mediation the least costly of the formal ADR mechanisms.

51. The process is inherently privileged; in fact there is much evidence that, for the process to work, privilege is essential24. Parties must be free to explore all areas of the dispute and any potential solution, however unpalatable they may first seem. For a party to be able to use the commercial imperative to settle at a level far below that which they may normally expect, and which they would be forced to pursue in normal third party determination ADR, they must be protected form the consequences that would normally flow from the expression of the willingness to settle at a particular level.

52. In commercial disputes parties will be – or should be – acutely aware of the value of money. A settlement now can be worth much more than one in six months or two years from now. And this does not just mean the inflationary net present value either; the finance costs of money, assuming you are able to access it, is much higher than the inflationary cost and the commercial cost of cash flow difficulties and the damage that does to good will and your ability to exploit opportunities and avoid other disputes, can be devastating. All of these things can make an early settlement much more valuable than any pure pursuit of ‘the right answer’.

53. In an international setting, careful selection of the mediator can assist enormously with cultural differences between the parties. The purpose of the mediator is to facilitate communication and a common understanding of the cultures involved can help the parties avoid any of the pitfalls of cultural misunderstanding.

3.2.3 Disadvantages

54. Mediation is not without cost; and the cost is not cheap. Mediation can be, and normally is, much more cost effective than other forms of dispute resolution; but only if it succeeds. Should you fail to settle all mediation will have done is to delay the final resolution of the dispute and caused the expenditure of a lot of money to no end.

55. The process is consensual and therefore vulnerable to breakdown at any time even with the assistance of the mediator to avoid it. (See paragraph 53 above for the advantages of a skilful mediator in avoiding the breakdown.)

56. In my experience mediation is also vulnerable to misuse by parties wishing to delay settlement. It is particularly common in construction and engineering disputes for a stronger party to attempt to delay settlement and bring considerable commercial pressure on a disputant to gain a more favourable settlement or even avoid the debt altogether by forcing the failure of the other party25.

57. Mediation is non-binding until a settlement is reached; even then if the agreement is not honoured (or fails to properly deal with changes in circumstances or unintended consequences) it will need to be enforced, which will generally involve a court. Some of the pain of this can be avoided by ensuring the reasonableness of the agreement, having the court issue the agreements as an order as in court annexed mediation or by turning the mediation into an arbitration and having the agreement issued as an arbitration award.

4 COMPARISON

58. When used in the search for a solution to a dispute, negotiation and mediation share much common ground; indeed mediation is essentially assisted negotiation. However, they are different and, it is suggested, most appropriate in different circumstances and at different degrees of dispute; the less able parties are to communicate the more likely they are to need mediation.

4.1.1 Cost

59. Negotiation should in most instances, be cheaper than mediation, assuming that a settlement is reached; for this to not be the case mediation would have to reach a conclusion much faster than the equivalent negotiations, sufficient to offset the additional cost of mediation’s mediator, support staff, venue, preparation time, agreement drafting etc.

4.1.2 Speed

60. Negotiation is quicker than mediation in most cases. It requires no prior preparation26 or even a venue. Mediation requires some preparation; the mediator will need summaries of the dispute and supporting information, the venue and support facilities will need to be arranged and the process of mediation – particularly with separate caucuses – is more clumsy and time consuming than direct negotiation. Of course the mediator as well as all of the parties representatives will need to be available.

4.1.3 Flexibility

61. Negotiation is the most flexible of all the ADR mechanisms; it is completely under the control of the parties. Mediation while still flexible is a process which the parties are undertaking in the presence of a third party. Each party is able to disengage at any time, like negotiation, but the slight sacrifice which must surely occur in mediation with the presence of a third party, is the reason that mediation can work when negotiation fails. The mediator, helping the parties to communicate, must have some level of control or influence (otherwise they would serve no purpose) even if it is just in the mind of the participants.

4.1.4 Party Autonomy

62. The parties have a great deal of control over the process of mediation, although not complete control. The availability of the mediator, how they exercise their influence or the impression they create by making suggestions or just asking questions will vest some element of the process outside the parties. Negotiation is wholly and completely under the control of the parties.

4.1.5 Settlement and Enforcement

63. Settlement in mediation is arrived at, with some assistance, by the parties, but the record of the agreement is made by the mediator and is therefore independently recorded and by a professional who should be aware of the requirements to make a binding and enforceable agreement. Negotiation is at the mercy of the ability of the parties to properly record it, assuming that the agreement is actually what it seems – the propensity for participants to hear what they want to hear and ascribe meanings to an agreement that are derived for their own point of view only is great.

5 CONCLUSIONS

5.1 SUMMARY OF CONCLUSIONS

64. Negotiation should always be the first step in any dispute resolution. It is a quick, cost effective and flexible form of self help and the vast majority of disputes can be settled by this method. It does not always work however. Communication can be difficult if each party does not hear the other or have a realistic understanding of their true position. Personal antagonism and the weight of past dealings and bad feeling can prevent the clear communication and compromise necessary for settlement.

65. When negotiation fails mediation can be an effective method of settlement. The assistance provided by a more formal procedure, albeit one the parties are still in majority control of, can help re-establish communication and allow each party to gain a more accurate and complete picture of the whole of the dispute; a necessary pre-requisite for the satisfactory and lasting settlement of any disagreement, whichever method resolution is chosen.

1. Definition from the Oxford University Press, Compact Oxford English Dictionary.

2. Best Alternative To a Negotiated Agreement – the cost of not agreeing.

3. Many commentators have postulated that negotiation contains multiple stages; a good summary is provided by Roberts and Palmer in Dispute Processes: ADR and the Primary Forms of Decision Making, Chapter Five Pages 126 and 127. An interesting alternative is also given by Christopher W Moore Ph.D.

4. Definite figures for the settlement of disputes by agreement are rather thin on the ground, but anecdotal evidence suggests that two thirds of litigations and arbitrations settle before judgement or award. My own experience bears this out.

5. The view of a dispute as a competition over a finite resource in a zero sum game does tend to breed a lack of communication and trust. For fear of loosing parties are less likely to explore all outcomes and therefore less likely to find the one most acceptable to both.

6. This method is more likely to discover the most acceptable outcome and explores more solutions as more information is exchanged and the permutations for the solutions are greater. It is also more likely to be expeditious as less time is spent hiding your position in an attempt to gain an advantage. Parties using this approach are however more vulnerable to being misled.

7. Unbalanced in the terms of the party’s perception of what is fair and acceptable that is, not in the sense of a necessarily just or correct decision: in negotiations you do not always look for the right answer.

8. Ideally it should be obvious to the parties that, while they may not like the settlement, they can live with it as the least bad option; in this event the settlement will normally be self enforcing – the parties follow it through.

9. For a discussion of the English Law principle of privilege see Hoffman LJ in Muller v Linsey & Mortimer [1996] P.N.L.R. 74].

10. R A Hinde (Editor); D M MacKay – ‘Non Verbal Communication – Part A the Nature of Communication; Formal Analysis of Communicative Processes’,Cambridge University Press, 1975]

11. Definition from the Oxford University Press, Compact Oxford English Dictionary.

12. Mediation is mentioned by Homer in the Odyssey (9.112); see also Harter-Uibopuu – Acient Greek Approaches Toward Alternative Dispute Resolution.

13. See Dispute Resolution by Non-Official Institutions in Traditional China – Arbitration August 2006 p178.

14. For a summary see WHAT CAN WE LEARN FROM COMPARING MEDIATION ACROSS LEVELS by Tom W. Milburn –published by the Network for Peace and Conflict Studies, George Madison University

15. By which I mean mediation which follows a set of formal rules set out by bodies such as International Chambers of Commerce, London Court of International Arbitration, World Intellectual Property Organisation, the American Arbitration Association or Court Annexed / administrated mediation.

16. See ‘Alternative Dispute Resolution: Panacea or Anathema?; Harry T Edwards – Harvard Law Review Vol. 99:668.

17. See ‘Alternative Dispute Resolution Processes within the Framework of the World Wide Access-to-Justice Movement’; Mauro Cappelletti: The Modern Law Review, Vol 56, Nr3, May 1993; see also ‘Getting Disputes Resolved:Designing Systems to Cut the Costs of Conflicts’ William Uri, Jeanne M Bret and Stephen Goldberg, 1988.

18. ACCESS TO JUSTICE Final Report – By The Right Honourable the Lord Woolf, Master of the Rolls – JULY 1996.

19. Although I have also found the use of separate caucuses with the mediator alone to be more beneficial than the ‘mediator as referee’ approach to mediation; not least because by the time the parties get to mediation their desire to conclude the dispute is exceeded only by their dislike for the other party or parties. Controlled distance can be beneficial.

20. Spike Milligan in his war memoirs of the North African campaign of the Second World War, characterised war as long periods of boredom punctuated by short periods of extreme violence. It has often occurred to me during mediations that this description is apt for mediation, if you substitute agreement/disagreement for violence (well most of the time anyway).

21. Although it is advisable, if not essential, that the particular forum is notified of the parties’ intention if only to stay the proceedings if the mediation is to be protected (English CPR r.26.4).

22. See notes 13 to 16 inclusive above.

23. See Kinstreet Ltd v Balmargo Corp [1999] unreported and Cable & Wireless Plc v IBM UK Ltd [2002] 2 All E.R. 1041 (Comm)

24. See When Does ‘Confidential’ Mean Confidential? An Important Development in the Law of Mediation and the Without Prejudice Rule – By Hew R Dundas; Arbitration August 2007 p335

25. English Law, while recognising the benefits of mediation and encouraging it in terms of costs penalties, does so for the ‘unreasonable refusal to mediate’. Where the parties have, in effect, exhausted the negotiation process and mediation would bring no benefits and just result in cost and time penalties, it is recognised that mediation need not necessarily be a viable option.. See Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ. 576.