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ADR Practitioner Update – September 2015

Date: September 25, 2015 Posted by No Comments


Don’t ’empty chair’ the Plenary

After a few decades of largely unchanged mediation practice, some practitioners have begun to wonder whether there is anything beyond the tried and tested (and very successful) mediation model most of us have been working with for years.

The more substantial, complex or sensitive disputes have always demanded a bespoke process design. But for many disputes, the process has remained largely unchanged. Parties turn up, they know what to expect in terms of process, and everyone gets on with it. But in the past few years, there have been murmurings. In a few places, practice has actually changed. The plenary session, a stage that many mediators regard as fundamental, is in the cross-hairs!

The plenary under threat?

In the absence of any obvious problem with the present, albeit dated, model, debate has, almost by default, focussed on what is the most clearly defined, sometimes less than comfortable and occasionally unhelpful, stage of the day.

The plenary requires great skill, time and effort to get ‘right’. The parties to the same mediation sometimes have diametrically opposed views as to what ‘getting it right’ looks like. There is no formula to follow, no rule book. The way parties play it depends on a whole host of factors – clients, the strength of case, whether proceedings are on foot or are merely threatened. Some parties want to scare the hell out of those on the other side, some to more subtly sow a few seeds of doubt. Others will want to demonstrate how believable, credible, honest and able to withstand detailed and hostile cross-examination their (as opposed to the other side’s) witnesses will be. And some will try to set the agenda for the day or take a (strategic) laying of cards on the table approach. Of course, none of these approaches are mutually exclusive and a party’s opening may vacillate from outright aggression to declarations of love (well, almost) and respect. Given the limitless flexibility, there often isn’t an alignment of approaches amongst the parties and sometimes, even with the best of intentions all round, the plenary can grate, parties can come away feeling frustrated, angry, even more entrenched than they were, or simply feel that the session was a fairly pointless exercise.

And that, I suspect, is one of the key reasons why the plenary has been the subject of some attention.

We have all had sessions where one side puts an extraordinary amount of effort into the plenary, speaking elegantly, politely, doing their level best to engage and what do they get back? Sometimes little more than, ‘there is no point in us repeating our mediation statement, you know our position, we know yours, let’s just get on with it’. Not great! Sometimes, one side goes out of their way to annoy the other. Even worse. But just because some plenary sessions are less than satisfactory or fairly arid affairs, doesn’t mean we should abandon them all together.

Conflicting developments

Leaving aside mediations that warrant a considerable degree of choreographing in advance, I have seen two, perhaps conflicting developments over the last few years. On the one hand, some parties are becoming more relaxed about whether there is a plenary session. Whilst still generally assumed there will be, I am being asked more often these day whether that is my preference. And, occasionally, I am simply told that the view of one or all parties is very much that there should not be a plenary.

On the other hand, I see much more effort and thought going into plenary sessions. I see clients themselves much more comfortable, no doubt because of greater preparation, in taking the lead role. Whilst this is always what mediators hope for, in the past, at least in my experience, the plenary was typically dominated by the lawyers with clients having mere cameo roles. Thankfully that has changed, noticeably in my view, and plenary sessions are becoming much more meaningful stages of the mediation with clients themselves, as well as lawyers, becoming thoroughly immersed in the dialogue.

So, a slight but emerging degree of ambivalence towards the plenary, if not outright opposition on occasion, but also a recognition, clear from the fuller, more productive plenary sessions that are becoming the norm, that it affords a golden opportunity that needs to be exploited for all it is worth.

Where we heading?

Litigation lawyers know what they are doing. They know their clients. They know their case. There may be very good reasons for wanting to reflect on whether a plenary is a good idea. Often, any doubt will have arisen because of the sensibilities of clients. Whatever the position, we should avoid being too precious in preserving the one-size-fits-all plenary. When faced with ambivalence or outright opposition to a plenary, we should find out where the reluctance comes from. It may be no more than a feeling that ‘we just want to get on with it’ and that the plenary is no more than an archaic stage of the mediation process that simply affords the parties a needless opportunity for a bit of grandstanding before getting down to business. There may, however, be more substantive concerns. Whatever the position, there needs to be a discussion. From these discussions there usually emerges an idea, often something better suited to the dispute and the personalities involved, and the conversation can shift from the simple binary analysis of ‘to have/not have’ a traditional plenary, to a range of options some of which which may, ultimately, be better all round than the traditional style plenary.

An example. I mediated a dispute between a number of individuals, all separately represented, who had at one time been friends and business partners. One claimant, a number of defendants. They all knew each other well. There was reluctance to a plenary session on the part of the claimant. He had no appetite to face a line up of former friends/business associates and their respective legal teams, all broadly saying how hopeless his claim was. And who could blame him! I got it, but more importantly, so did the defendants and their advisors. Would it have been right to slavishly follow the typical plenary model? I don’t think so. And we didn’t. But I did push for the claimant to meet with each defendant, in turn. We thought about the order of meetings, we thought about combinations and we got into a rhythm. I felt that those on the defendant side adopted a more open-minded view of life because of the one-on-one approach adopted from the outset. Each defendant had a slightly different take on matters and that made the combined defendant only sessions far less myopic than can sometimes be the case. I have to admit to wondering if the approach was a terrible waste of time (because it did take time), whether I should have pushed for a traditional plenary or suggested dispensing with it all together. But we persevered and it paid off.

A second example. There was real concern that if particular messages (in reality new and more serious allegations) were imparted at the plenary session, there would be blood (metaphorically speaking). So we had two! The first was really no more than an elaborate meet and greet session. But nonetheless, it was civilised and helpful. The second was a more meaningful, full-bodied session, involving greatly reduced numbers on each side. And we survived!

A third example. It was agreed that each side would present a fully worked out proposal for resolution at the outset because of concern all round that parties might ‘go backwards’ if there was a traditional style plenary.

A fourth example. Lawyers only! Each set of advisors were acting for a faction of a family immersed in quite a vicious family business dispute. And they did a great job. It would have been absolutely wrong to throw the warring factions together at the outset when they were still all finding their feet in what was, for them, a totally new and fluid environment.

These examples were borne out of genuine concern that a traditional approach to the plenary might not be helpful. Bespoke mediation processes should not be confined to the biggest, most complex or hyper-sensitive disputes. I am a great believer in an early joint meeting. In my experience, if there isn’t one, the mediation moves slower, the debate is less fullsome and, in some situations, the absence of some form of direct dialogue can be positively unhelpful. At a mediation a while ago, one party refused to participate in a plenary session despite the other side being very keen. Later in the day, that same party requested a face-to-face client meeting. The other side said no. They had felt snubbed when their request for a joint meeting at the beginning of the day had been declined.

However, the possibilities for tailoring the traditional plenary session are endless and I would suggest that it is a rare case indeed that warrants no direct interaction of some kind early on in the day.

By way of introduction to the case reviewed below, we should perhaps reflect on one of the main reasons why parties can feel less than positive about plenary sessions. Positioning! Sometimes, the degree of positioning adopted by one side is just a little too, well, positional, for the other. Whilst a degree of positioning is inevitable at mediation, we have all seen it go a bit too far but, in the words of Mr Justice Turner in Laporte v MPC, ‘Tactical positioning should not too readily be labelled as intransigence’.


Positioning, pre-conditions and abandonment

The case of Laporte & Christian v The Commissioner of Police of the Metropolis [2015] EWHC 371

The Claimants lost their case but argued that there should be no order as to costs because the Defendant had refused to engage in ADR. The judge trod what is now a familiar path, starting with CPR Part 44, noting that the burden of persuasion rests on the Claimants, narrowing the analysis from ADR generally to mediation, and then going on to consider the Halsey factors. The Judge began his analysis, however, by outlining the progress of the litigation so far as relevant to the issue before him, namely costs. The Defendant had declined an opportunity to attempt settlement at the allocation questionnaire stage, did not respond to an offer of mediation (including by a date subsequently ordered by a Master), but eventually offered to meet the Claimants in ‘a mediation hearing in an attempt to narrow the issues for trial’. The ADR discussion continued thereafter for quite some time. There was a telephone conversation between the Claimants’ lawyer and the Defendant’s in-house lawyer. It was agreed there would be a meeting on an ‘open minds’ basis, on a date to be agreed, although the Defendant’s lawyer was left with the impression that the Claimants’ lawyer only considered ADR worthwhile if there was going to be a money offer. A few weeks later, the Claimants’ lawyer wrote, summarising the earlier conversation, stating…

‘The Order dated 13 October 2013 required you to respond to …. our offer of mediation dated 26 September 2013…If you have instructions to make a meaningful offer our clients would be pleased to attend mediation in order to explore ADR…If you do not have instructions to make a meaningful offer we are concerned that a mediation where your client simply offers to ‘drop hands’ would not constitute a proportionate use of funds and our time might be better spent on preparing for trial. We are in your client’s hands as to whether he is willing to enter into mediation with an open mind to achieving a meaningful settlement’.

The response to that letter was that both parties should approach mediation with an open mind. It was said that although it was unlikely the Defendant would make a financial offer, this couldn’t be ruled out. The letter went on to express concern that it was being made a pre-condition of the mediation that there would be money on the table. The Claimants’ lawyer responded saying that his clients would approach the process in a frank and constructive manner but that…

‘Their view remains that a payment of compensation will be necessary to compromise this claim; however they are of course willing to listen to what your client has to say in that regard and vice versa in the spirit of ADR’

Attempts were made to find a date, the Claimants’ lawyer saying that if it helped, there would be no objection to a meeting between solicitors and/or clients in the absence of counsel. A PTR took place on 23 May 2014, following which another ADR related conversation took place between lawyers. The Defendant’s lawyer again got the impression that the Claimants’ lawyer saw a money offer as a prerequisite to compromise but also that he accepted that his clients would come to ADR with an open mind. Thereafter, the Claimants continued to push for a date. Eventually, on 4 June 2014, the Defendant’s lawyer responded by e-mail saying that…

‘I will be sending a letter re ADR. For reasons which I will explain in the letter I no longer think an ADR meeting is an appropriate use of resources for either party given what was said by you and your Counsel at and just following the hearing on 23 May’.

The Claimants’ lawyer responded the same day seeking an explanation, whilst also making the point that there was nothing new said regarding ADR by him or counsel at or following the PTR. The Defendant did not provide a response, nor follow up the e-mail of 4 June 2014 with a letter. On 6 June, the Claimants made Part 36 offers but no response was received. A trial went ahead, the Claimants lost and, in response to their obvious argument on costs, the Defendant argued that the nature of the dispute made the case unsuitable for ADR. The Judge disagreed, fleshing out his reasoning in the context of the Halsey factors.

To my mind, the most interesting part of the judgment was in relation to the question of whether the mediation had a reasonable prospect of success. In this regard, the Judge concluded by saying…

‘The central point relied upon by the defendant is that Ms Fowler came incrementally to the view that the claimants would only accept a financial offer and that the defendant was unlikely to make one and so ADR was not appropriate.

I would make the following observations:

i) At no time had the defendant excluded the possibility of making a money offer;

ii) At no time had the claimants insisted that the making of a money offer would be a formal precondition of engaging in ADR;

iii) It is always likely that those representing any given party to a dispute will seek to lower the expectations of the other side in preparation for ADR. Simply because one side makes a prediction of what it might take to reach a settlement does not entitle the other side to treat such a prediction, without more, as a formal pre-condition. Tactical positioning should not too readily be labelled as intransigence; (emphasis added)

iv) I do not agree that Ms Fowler was entitled to take the view that Mr Dutta’s approach to ADR was purely tactical. It had been on the claimants’ agenda from the outset and was pursued with appropriate vigour throughout;

v) It is difficult to escape the conclusion that Ms Fowler was repeatedly on the procedural back foot in the months leading up to the hearing as a result of which the pursuance of ADR was deprioritised to help her to meet the demands of preparing the case for trial.

On the evidence before me I am satisfied that there was a reasonable chance that ADR would have been successful in whole or in part. The defendant was not justified in coming to a contrary conclusion’.

The Judge went on to say that taking all matters into account, he was satisfied that the Defendant’s failure ‘fully and adequately to engage in the ADR process should be reflected in the costs order I make’ and went on to award the Defendant only two thirds of its costs, to be assessed on the standard basis.

There is a lot that can be said about the Judgment but it is the ‘tactical positioning’ point that I think is of particular interest.

Most mediators will at some time have got that call a week or so before a mediation, in which they are told that the other side have said or done/not done this or that, and that, given their approach, there was not much point in mediating. Usually things can be smoothed over. People remain committed, just about and just enough to get them into the mediation room. Sometimes however, the mediation cannot be saved.

This case perhaps illustrates the dangers in reading too much into what a party says or does in the run up to a mediation. It is to be expected that parties will start positioning, employing their chosen strategy to put themselves in prime position to do the best deal possible. Those on the receiving end should not take it to be the sole determinant of likely success or failure of the mediation. Or of intransigence, or anything else for that matter. Of course, in extreme cases, questions might need to be asked as to the motives of the party concerned, but even in such cases, where perhaps the invective seems entirely inappropriate, it is more likely to be a case of a party just not being able help themselves, rather any firm indication of complete unyielding stubbornness.

The case could also be seen as laying down a bit of a marker for situations where one side seeks to set out a pre-condition for their attendance at a mediation. We can only speculate as to the outcome in Laporte, had the judge found that the making of a money offer by the Defendant was in fact a pre-condition set by the Claimants. I think that may well have put the Defendant in a stronger position.

We will have to wait and see how the cases go, but I suspect there will be a range of decisions depending on the nature of the pre-condition sought to be imposed. It seems to me that there is a real difference between a pre-condition that seeks, for instance, advance disclosure (given that the mediation can always take place at a later point once disclosure is given if this becomes a sticking point) and a pre-condition which seeks, for instance, that a particular person does or does not attend on the other side, that a particular point is conceded in advance, or that a money offer will be made over a certain level.

Jon Lang
September 2015