David Richbell FCIArb (Mediation)

Commercial Mediator & ADR Specialist

Papers written by David Richbell

Making the best of Mediation

In a commercial mediation the Mediator has a responsibility to give the parties the best chance of doing a deal. This includes creating the right atmosphere and environment and building trust with, and between, the Parties…….

Mediations Get Better Deals

A lot has been written about mediation, mostly in support, some casting doubt on its suitability in resolving insurance disputes. This article is written by a non-lawyer commercial mediator who has been resolving disputes for the past 20+ years. It concentrates on what added-value may be brought by the mediator and on the business advantages derived from mediated deals. The aim is to show how those who are ignoring mediation are missing the opportunity to strike better deals…..

Mediation Is The Only Way To Justice

Where I come from
I want to first put what I am about to say into context: where I am coming from. I grew up in the construction industry; it is in my blood. My training ground was with contractors before I then became a chartered quantity surveyor and ran my own practice for 18 years. I love construction; I feel as if I am back home when socialising with contractors and other construction professionals. When Chris, my wife (who is an artist), and I took our children for walks she would be pointing out the flowers but I would be pointing out the chimneys. My children are experts on the styles, function and age of Northamptonshire chimney pots!

So You Want An Evaluative Lawyer Do You?

The use of Mediators for the resolution of commercial disputes is now an established and increasing part of the dispute resolution landscape and with it comes several emerging trends. Some are good, like the use of Mediators in complex negotiations (Deal Mediation), the use of Mediators throughout large contracts (Project Mediation) and the current discussions on regulating the emerging Mediator profession. However, some trends are not so good and the two that I want to cover in this paper are:
• the increasing preference for lawyer Mediators; and
• the increasing trend for Mediators to be evaluative, either at the party’s request or as a presumption by the Mediators.

The Non-Rise of the Non-Lawyer Mediator

I realise that this is a very dangerous place to be! Many of you will be work-providers and winning the Debate may put me out of work. So I want to start by saying you may feel that what follows is anti-lawyer. I am not anti-lawyer – after all, as I said, lawyers give me work. Indeed, I want to express my appreciation because, if was not for lawyers I wouldn’t be here. I would probably still be a chartered Quantity Surveyor - if I hadn’t expired through boredom by now. But the point I am making is that if lawyers had been cheap and efficient in resolving disputes Mediators would not have been necessary. As it is, the Woolf reforms came about because litigation was so lengthy and expensive that alternatives needed to be found – and so mediation became respectable and part of the dispute landscape….

Shaping The Deal

It is almost inevitable that parties take an adversarial position at the beginning of a mediation. “These are my rights and I’m going to give you very little and very slowly”. Mediators will encourage parties to co-operate in finding a solution to their problem, and experienced Mediators will do their best to avoid parties ‘salami-slicing’, or ‘peeling the onion’, (a multitude of small moves towards a settlement figure). Salami-slicing just causes frustration and, sometimes anger, and ignores co-operation….

Deals With Dignity

I have just come from a three-party mediation where each party had Counsel and solicitors present. The dispute was about the break-up of a family business and feelings were very strained even before the mediation started. As usual, I saw each of the parties privately in their room before we had the joint opening session, settling any queries and explaining again what they had let themselves in for. And I said to each of them “My experience of family business disputes is that feelings run high and I would like your opening statements to be co-operative rather than confrontational. Confrontational openings tend to set the process back and it takes some time to recover and get the parties engaged and working towards a solution. This is a joint problem and you are here seeking to find a joint solution”. Everyone nodded and agreed with such words of wisdom. And sure enough, the opening statement from the Claimant and the First Defendant were conciliatory and positive and set the process off in the right direction….

The Subversive Lawyer's Guide to Mediation

Mediation is ‘sold’ on the basis that it is quick, cost effective, confidential and puts the power back with the client. The Mediator, an independent and impartial third party, helps the parties to negotiate their deal in a forum that is flexible, informal and private. The effective lawyer has an active role, supporting and advising when required, and a quiet but influential role in the back seat when the client is ready to take control. It takes great skill to know when to activate the appropriate role…..