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Personal Injury Lawyer Tips: Preparation for Mediation
A recent report by Grant Thornton entitled “The future of dispute resolution” published in February 2006 revealed:
“8 out of 10 external lawyers and 9 out of 10 corporate think that more cases will be resolved by…. ADR over the next 3 years”
“The volume of High Court litigation has declined significantly in recent years”…but in-house lawyers report a small rise in disputes over the last 3 years.”
“ADR has made significant inroads into litigation market….” and the “focus and publicity for ADR has encouraged a corporate culture of managing disputes more proactively and seeking early settlements.”
This illustrates the continued rise in importance of ADR.
More significantly for personal injury practitioners, there is the requirement for consideration of ADR prior to the issue of proceedings in relation to all types of cases has recently been strengthened by the 41st Amendment to the CPR, effective from April 2006.
With mediation entering more and more the civil and commercial landscape,(not least of which due to the fact that mediation successfully resolves cases in at least 8 out of 10 cases) Personal Injury lawyers need to give more and more consideration to this form of ADR.
Lawyers are increasingly aware of mediation yet in my experience often make some errors in dealing with their tactical approaches to the conduct of them.
What guidance can I give with particular emphasis to the mediation prior to your arrival at the mediation hearing?
Prior to the mediation hearing you need to consider some of these variables:
Think about what point in a case you should mediate? The advantages of early mediation is that you can try to get the case settled before too much legal costs have been accumulated but there can be a danger that both parties are not adequately prepared. However if the mediation happens just before the trial the parties may feel that they have nothing to lose. In my experience it is better if the parties wait until they are fully comfortable with their knowledge of their cases and have a full understanding of the issues. Therefore do not make the error of mediating too soon.
Think about the size of your mediation team. Leaner & smaller teams work - From a claimant or defendants’ perspective a smaller team containing the person with the authority to settle is far more efficient than a larger one. The real danger of having a larger team is that everyone wants to get their six pence in. This is less of a risk for PI Claimant lawyers but if you start allowing a number of lawyers to attend a case together with all the Claimants’ entourage, it is going to make the mediation more difficult to settle.
Make the right kind of preparation. Whilst it is correct that lawyers should focus on the law, ensure that you focus on the fact that mediation is a form of negotiation. Try to think beyond the law to see if there can be any commercial solutions, which can be of use to all the parties. Also think about what your first offer will be at the mediation and whether you wish to make it prior to the other side making theirs.
Be careful in the selection of a mediator – You need to look at a number of mediator attributes such as the professional background, the subject matter expertise, and the Mediator personality – Within this consider if the mediator has a diplomatic approach, intellectual rigour, the integrity, the patience and the persistence of the mediator. There is another variable, which needs to be considered is the type of ADR Organisation the mediator comes from– There are a number of ADR organisations which exist including CEDR, The Academy of Experts and the ADR Group which are worth considering.
Think about the venue. The venue is important but does not have to be at a neutral venue. By way of example there may be benefit in locating it at where the project has taken place. This will assist with site visits, access to local managers, access to relevant decision makers if need be. It is my preference that the mediation is held at a quality venue and this can have a bearing on whether the case can be settled. The slight disadvantage of holding the mediation at one of the lawyer’s own premises is that if the home party has a better room, this is bound to antagonise the other side. Also the “home party” can allow themselves to be detracted by telephone calls and their other workloads.
Contact Human Law Mediation on 0844 800 3249.
Justin Patten is an Accredited Mediator with the Academy of Experts who has advised in many workplace and personal injury disputes. As a qualified solicitor he has also acted for clients on a wide range of disputes and is fully familiar with the legal process. Over the last 18 months he has elected to specialise in mediation, providing a full mediation service direct to businesses and via law firms, as well as providing practical mediation training. If you would like to reproduce this article please contact Justin Patten on 0844 800 3249.
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