What have lawyers got to gain from civil mediation? By Paul; Sandford

As in my previous mediation related articles I am focusing on the UK and the jurisdiction of England and Wales in particular. However, again I stress that the principles set out below will equally apply in many other jurisdictions. Although not exactly concurrent the anecdotes that I give below are timeless and as relevant today as ever they were.

For the most part, lawyers are not extrinsically bad people. They provide society with a whole host of valuable services. I am a retired lawyer. I worked as a lawyer for over 30 years before focusing on my judicial appointment and of course mediation. I worked as a solicitor in the public, publicly funded and private sectors and undertook a very wide spectrum of work. In many respects I enjoyed my work and on balance I consider that the majority of my experiences were positive.

That is not to say that I was altogether happy with things and as the years rolled by I became increasingly less and less enamoured with the civil litigation system. Lawyers and their clients not only have to deal with things like “the law”, “the facts” and “the evidence” none of which are in any way straightforward. Additionally they have to contend with a body of rules relating to court procedure that is inordinately complicated and I suspect in truth understood only by a small minority of lawyers and judges.

Equally, there is the uncertainty over costs which effectively means that those who “win” a so-called “lower value case” will not cover all their costs. Financially speaking, after having waited months or years for an outcome, clients may be no better off than they were at the beginning.

Latterly my preference was for meaningful early negotiation and I increasingly found my best results were secured via this path. On the one hand this meant less revenue in individual cases. However, on the other, this was more than adequately offset by the combination of faster case turnover, quicker final payments and greater client satisfaction.

It was only when, some years after ceasing legal practice I went on my first mediation training course that I really grasped the full reality of the absurd civil litigation system. I was an instant convert not because of disillusionment with litigation but because I realised very quickly what the benefits of mediation are and why it is both a force for good and good for lawyers.

My viewpoint is shared by some elements of the legal profession and I can think of notable examples of lawyers who have either embraced mediation wholeheartedly or at least recognises its value and instruct mediators from time to time. Unfortunately, this progressive element of the legal profession is quite a small minority. There are far too many who are wrongly believe that mediation will deprive them of work and revenue. They cling tenaciously to the tenets of the existing system and in so doing give the whole concept of civil justice a bad name.

But is mediation really a bad thing for lawyers? Absolutely not. Here’s why.

1. “If you can’t beat them join them.” Sooner or later the legal jurisdictions in countries such as the United States, Canada, the UK and India will embrace wholeheartedly mediation. When they do, harsh measures will be enacted and lawyers will have to use mediation whether they like it or not.

As is already happening, those who unreasonably refuse to mediate will be heavily penalised in costs. Lawyers, who failed to advise appropriately in this regard will probably be subjected to punitive costs orders and even disciplinary proceedings.

The core principle of legal practice is that lawyers are expected to do their best for their clients. If “the best” means mediation and a lawyer fails to mention it, soft pedals or whatever, then that individual and/or firm is in breach of a core principle. Even now, all it takes is for one or two savvy possibly vexatious clients to lodge complaints about ostensible failures to mention or advise in respect of mediation and in complaints terms, the floodgates will open.

The cynic in me suggests that the legal profession should bow to the inevitable and get in on the ground floor now rather than wait “see what happens”. The optimist in me strongly recommends that the profession considers this article as a whole and embraces mediation immediately, but for the right reasons and because of what it has to gain from doing so.

2. The myriad of cases that require neither litigation nor mediation.

There are lots of bits of civil law that are considered to be non-contentious and not require input from either litigators or mediators. Conveyancing, will drafting, taxation advice, the drawing up of commercial and other agreements, bankruptcy, town and country planning, and takeovers and mergers are only a few examples of areas where lawyers are very active and rightly well remunerated but more than likely without either civil litigation or mediation ever coming into play. I can think of many successful lawyers who have rarely ever uttered the word “litigation” and have never set foot in any sort of court.

3. Mediation is not an alternative to “law”. Mediators do not hold themselves out as advisers, judges, arbiters or anything like that. They keep their opinions to themselves. As I have stressed in earlier articles, this fundamental precept of mediation is always made abundantly clear to potential clients at the outset and is subsequently reiterated.

In this regard there are many cases where not only are there factual issues to discover but also there will be points of law that require adjudication by a judge and can only be pursued through the courts. This is partly because a lot of UK law is made by judges either as pronouncements based on Common Law or interpretation and rulings are often very badly drafted pieces of legislation enacted by either government or the civil service. It would be wrong to suggest that mediation has no part to play in such cases but primarily, access to the judicial process has to be via lawyers and the legal system.

4. Preparatory work in litigation and “finishing off” cases including finalising settlements. People involved for example in a personal injury case or a consumer dispute cannot contemplate mediation until they know whether or not they have a case. This necessarily requires lawyers to give initial advice and undertake a great deal of preparatory work e.g. obtaining specialist reports, advising on prospects of points of law, evidence and prospects of success and likely levels of compensation or otherwise. In practice, while the most important, and I believe one of the most financially remunerative stages of the litigation process, is the preparatory stage without which there can be no effective mediation.

Although lawyers should really take a secondary role in mediations, not least in complex cases their presence can be helpful. This might be for example when a a potentially complex, binding agreement is required. In many cases court approval will be required. Judges will of course be concerned to ensure that parties to individual cases have been properly advised.

In similar vein the question of the weak or bad case should be looked at. Lawyers routinely encounter such cases and subject of course to being properly reimbursed and can give the appropriate advice very quickly saving everyone a lot of time, money and inconvenience.

5. Out-of-court settlements. Many cases do not require mediation because the lawyers involved effected an out of court settlement sometimes before court proceedings, sometimes after. There is a body of opinion which suggests such settlements are not always just and fair because they may be finalised at the last minute, are sometimes ill- considered or may to some extent be imposed et cetera but I suspect this is not universally true. Good, sensible lawyers, particularly those who know how to negotiate rather than insistently adopting rigid standpoints may not need the services of a mediator.

6. Turnover. Early on in my career, my then boss confided to me that he was a very rich lawyer. However, he quickly qualified that by pointing out that as potentially valuable as the enormous bundles of papers in his filing cabinets were, they only became meaningfully valuable when individual cases resolved. This could have been any time soon but in reality it was often far off in the unpredictable future. In a sense it was like so many, my boss was “filing cabinet rich, cash poor”.

Certainly in privately funded matters, lawyers bill on an interim basis but save in the minority of law offices that are exceptionally well resourced in terms of time recording paraphernalia and the like, it is the final, potentially large payment at the end of the case that counts. Given that even in the hands of the most capable and conscientious of lawyers litigation cases still take months if not years to resolve, the hard cash needed on a month-to-month basis to ensure that running costs are paid does not materialise when it is needed and financial strain results.

Mediation means that cases do not take as long as would otherwise be the case. Although a lesser amounts of remunerative work may be done, not only can lawyers very reasonably charge for it in full but they can expect to have full and final payments much sooner. Good case turnover equates to more cash in the bank.

Also, increased turnover of completed cases invariably means greater client satisfaction. Reputations are enhanced and there is a greater likelihood of repeat instructions. There is nothing to stop individual lawyers suggesting mediation and then taking the credit for “such an ingenious solution”.

7. The (so-called) big case. Back in the early 1990s when I worked in a smallish firm I had a really big case. At that time in the English and Welsh County Courts the average, maximum compensation awarded in an individual case was something in the region of £10,000. Partly because my case was factually complex and had some novel points which had to be considered, my ultimately successful client was awarded £75,000. The headlines buzzed and for 15 minutes I was very famous. The trouble was that the disproportionate amount of time that I devoted to this case meant that the rest of my workload was sidelined for quite some time.

My big case went to appeal and some modest interim payments notwithstanding, my firm did not receive anything like full and proper payment until three years after that case started. It took me weeks if not months to regain momentum during which I received very little by way of fees. My 15 minutes of fame ultimately counted for nothing and even though I had secured the most impressive of victories for my client, after all the time it took to get a final resolution he was disillusioned and dissatisfied - the complete antithesis of the satisfied client.

If I had known then what I know now I would have pressed strongly for mediation and this case would probably have been resolved after a few months. The large payment that was ultimately received once the aforementioned court costs procedures played themselves out was very welcome but it did not offset the interim “losses” attributable to my lack of turnover and revenue.

8. The (so-called) small case. Many cases, I suspect the vast majority of all civil cases, are very important to the parties involved but in truth are of low or relatively low value. In such instances, it is simply not economic for lawyers to have protracted involvement and most will have the good sense to advise accordingly. Many if not all such cases are eminently suitable for mediation.

There is nothing to stop individual lawyers, law firms or properly funded advice agencies from offering an initial advisory service, providing clients with advice about mediation and possible referrals. Of course the initial legal advice which the mediator cannot provide may have to be paid for. The sums involved would be modest but client satisfaction can be reasonably assured. Some firms of lawyers do very sensibly offer advice to such cases at modest cost or people can contact a Citizens Advice Bureau or legal advice centre. There are definite opportunities here for enterprising lawyers to give a good service and to receive a reasonable rate of remuneration.

9. Lawyers are born survivors and indeed very successful survivors.

I do not suggest that a mediation focused civil justice system will have no effect on the legal profession and I suspect that some arch traditionalists may in the short term feel the pinch. However, partly because there is such a demand for the legal services that people need on a day-to-day basis there is no likelihood of the legal profession ever withering away and dying.

My career as a lawyer was punctuated by prophets of doom predicting that such events as the ending of the conveyancing monopoly, allowing banks to advise in respect of wills and administration of estates of deceased persons, legal aid cutbacks et cetera heralded the shrinking, demise, death et cetera of the of the legal profession.

For the most part these pessimists have been proven wrong and the legal profession has survived. These supposedly negative events have been offset that the hospital that was either Tuesday or Thursday with about one hours per day what is the gym with those at by the increased use of legal insurance and previously outlawed “no win no fee” agreements. Lawyers with a forward thinking, commercial outlook have branched into different areas and created niche practices in fields of law that were largely alien to the legal profession back in the mid-1980s.

It is a tribute to lawyers that they have had the good sense and wherewithal to adapt to all of the challenges that have presented themselves. Not so much a case of survival of the fittest as the well remunerated survival of the vast majority.

To all lawyers I say this - “Mediation, you know it makes sense”.