Mediation and its advantages
A mediation is a facilitated negotiation between the parties to a dispute directed at settling that dispute, in which the parties meet with a neutral facilitator – the mediator – who helps them find and pursue options for settlement which are better for each of them than their available alternatives (usually – proceeding to court).
The procedure for the mediation is generally straightforward and informal, and is agreed in advance in a written mediation agreement provided by the mediator. The mediation typically takes about one day (depending on the number of parties and the complexity of the dispute) and begins with an opportunity for each of the parties to set out their positions and interests. The mediator then works with the parties, often by meeting with each of them in turn privately, in order to discuss the best options for settlement and how best to pursue them. If (or more usually, when) an agreement is reached, the mediator helps the parties to record it comprehensively in writing, bringing an end to the dispute.
There are compelling reasons why every party to a dispute should seek to settle it by mediation. Here are 10 of them.
- Unlike litigation, mediation is cost effective. It is widely recognised as the most cost effective dispute resolution procedure available. This is well proven. Most mediations – probably about 80% – succeed. The cost, both in terms of lawyers’ fees and the time of the parties, is a fraction of the cost of litigation.
- Unlike litigation, mediation is reliable and predictable. Litigation is fraught with risk and uncertainty. No matter how strong a party’s case, there is always a risk of loss. To make matters worse, the size of that risk is usually very difficult (and sometimes impossible) to quantify with any degree of certainty. In a mediation, however, the parties always leave with an outcome that they have chosen (not one that is forced upon them, or unexpected) and which they regard as better than the available alternatives. Even if they do not conclude the dispute at mediation, the opportunity of hearing the other party’s perspective, and discussing the case with the neutral mediator, is often valuable.
- Unlike litigation, mediation is not a spectator sport. It is totally private and confidential.
- Unlike in litigation, the parties get to choose the mediator: someone they are confident in and who is experienced in the issues. In litigation, the judge is an unknown entity foist upon the parties.
- Unlike in litigation, there are no rules. Anything and everything which the disputants wish to discuss and resolve is open to them.
- Unlike in litigation, the process is informal. The parties themselves can and do play a central role, it is not a lawyers’ show.
- Unlike in litigation, the parties control the process: they speak to the mediator privately before or during the mediation, confident that all that they discuss is confidential and privileged, and will not be revealed to the other parties unless they choose so to do.
- Unlike litigation, mediation is flexible. The client and their advisers design and agree the process, rather than a judge or arbitrator. The parties can question the other party directly and hear what the other party has to say.
- Unlike in litigation, the range of outcomes is unlimited: the client and their advisers fashion the solution rather than a judge or arbitrator.
- Unlike in litigation, the process is entirely co-operative, not adversarial. It is therefore less stressful, and more likely to yield a conclusion that both parties are comfortable with.
Mediating with Paul Sutherland
The legal profession in the UK being split between solicitors (who have general conduct of litigation up to the point of trial) and barristers (who specialize in conducting trials and other related court work) Paul’s work as a barrister was highly focused – on trials, hearings and alternative dispute resolution. Paul appeared in numerous high profile and reported trials and was consistently ranked in the various legal directories as a leading construction and commercial law barrister. In mediations Paul therefore offers valuable experience and insight in the process of “reality testing” the position and case of each of the parties to the dispute.
From the outset of his career Paul developed a particular interest in alternative dispute resolution, and in particular mediation, and was one of the first to recognize this as far and away the most cost effective dispute resolution procedure available to the parties to a dispute.
As a result of his background also in property development and project management in the commercial private sector, and in the military and academia (see further About Paul Sutherland), Paul brings a wealth of experience and also a fresh perspective to the resolution of commercial disputes by mediation, and is uniquely well placed to offer realistic and practical options for reaching agreement in such disputes.
As a committed and career “problem solver”, Paul brings an imaginative and pro-active approach to the resolution of difficult and complex commercial disputes and is persistent to the end in his pursuit of an agreement.
After 20 plus years of specialist trial work, Paul takes the view that litigation is unpleasant, and sometimes even downright ugly business. It is inherently risky, unpredictable, costly and hugely time consuming and stressful for the parties. There is very rarely a true winner except, as is widely known, the lawyers themselves. Paul therefore works his utmost to help the parties recognize the nature and extent of those risks and uncertainties in their own particular dispute, and to identify options for compromise which are in their mutual best interests.
Paul is no longer and does not wish to be a practising lawyer. In Canada he has undertaken continuing professional education in mediation (the highly regarded Stitt Feld Handy training) and now devotes his professional time solely to alternative dispute resolution. He has very few past dealings or connections with Canadian law firms or commercial entitles, so the scope for a potential conflict of interest in any particular dispute is relatively limited. Equally, Paul does not wish or seek to rely on ongoing relations or connections with Canadian (or other) lawyers, law firms or organisations for work, and is therefore totally uncompromising and undistracted in his approach to seeking a settlement in every dispute that comes before him.
Paul is used to dealing with claims of all sizes and complexity from those involving many millions of pounds to small private client disputes. He has an informal and pragmatic but analytical style, and is keenly aware of the commercial realities faced by the parties. He is ready and well able to press the parties on their positions and on the realities of litigation, and his extensive first-hand experience of all types of construction and other commercial dispute resolution (including court proceedings, arbitration, adjudication and all forms of ADR) enables him to do this extremely effectively.
Paul believes that what makes a good mediator is not unlike what makes a good trial lawyer: thorough preparation, an ability quickly to identify and understand both parties’ positions, their strengths and weaknesses and best interests, and creative thinking. Perhaps above all: the application of dispassionate analysis. Paul commits to providing all of these to his level best in every mediation he acts in, so as to give all parties their very best chance of the very best resolution available to them.
Paul is available to act as mediator in Toronto, Ottawa, Trenton, Kingston and Brockville, as well as the rest of southern and eastern Ontario, and by arrangement he is also prepared to travel throughout Canada.