The philosophy adopted for mediating disputes is a critical factor to the success of mediation. Philip is aware that each mediator will have their own style and approach and it is therefore of some importance that his approach and philosophy is identified.
Philip’s approach to mediating disputes is as follows:
Preliminary conferences are important as they assist the parties in identifying and narrowing the issues and are also a very useful tool in the process of planning and managing the mediation to ensure there are no hidden surprises or legitimate concerns that are not ventilated before the mediation commences e.g. when an insurer of a party does not propose to attend and whether this may cause difficulty for the other party/parties and if it does how it can be managed;
He is very much hands on and considers that being meaningfully engaged in the dispute and being seen as engaged is critical to the mediation process, in this regard he is committed to ensuring that he has read all the materials sent by the parties and has some familiarity with the legal and technical issues in play. He considers that his preparation and understanding of the legal and commercial issues (if any) is a critical ingredient for a successful mediation;
Philip considers that basic courtesies and politeness are very important and set the tone for any mediation and also lead to better communication and dialogue between the parties, especially where the proceedings may have been acrimonious;
Philip recognizes the importance of the role of solicitors and barristers in the mediation process beyond the drafting of a position paper, opening statements and drafting a settlement agreement. He does not consider that lawyers should be marginalized and actively seeks their assistance and involvement. Philip considers that the success of mediation involves all the persons present and that they deserve respect and courtesy and should be recognized for the constructive role they play. They should not be lectured that they are hindering the process or not approaching the mediation appropriately by insisting that their client’s position is informed by a particular legal position;
He is very inclusive and genuine in his dialogue and dealings with all parties and their representatives, particularly ensuring that parties who are not regularly engaged in legal proceedings (e.g. a plaintiff in a personal injuries claim or insureds in common law or commercial disputes), who often feel left out as the other parties appear to be more informed or relaxed. Philip considers that it is very important that all parties are “up to speed” on the mediation process and made to feel apart of the process, this needs to be established in the opening session and maintained throughout to ensure that all parties are engaged. Philip invests a suitable amount of time in the opening session to ensure that the parties are comfortable with the setting and process;
Philip ensures that all parties are informed of developments or steps being taken to keep the dialogue moving forward, this often only takes a few minutes where a party may otherwise be left in a room wondering what is happening and feeling left out of the equation;
A mediator must be seen to be involved at all times in the mediation. Being engaged and not reading/doing other work, taking telephone calls, reading a paper or being locked away in a room are simply unacceptable, no matter how the process is being driven. He considers that his time is owned by the parties and no matter how small the involvement being undertaken he should be seen at all times to be assisting the parties to resolve their dispute, even if he is simply acting as a courier of offers or propositions. Such engagement also permits him to have a greater understanding of the dynamics of the dispute, any likely blockages and to be abreast of any difficulties at the mediation as they develop without the parties needing to bring him up to speed. This approach has proven to be very useful and avoids parties feeling aggrieved by a perception, whether false or not, that some mediators are blasé, disinterested or not fully engaged in the mediation and already onto their next matter. He works very hard to avoid such a perception;
He believes that until the time allocated for the mediation is expended it is possible and desirable to assist the parties to resolve their dispute. This may be governed by the parties and their expectations but given mediations usually take a day, the whole day should be fully utilised and not allowed to drift into a malaise or that parties be permitted to leave before the allocated time for the mediation has expired;
Philip considers that where a day has been allocated for a mediation that the parties have access to him all day and that he will use his best endeavours to keep the parties moving forward and in constructive dialogue.