Law students take part in mock mediation run by Cotswold Barristers
4th June 2018
Towards the end of last term, Charles King, Margaret Young and Lise Seager of Cotswold Barristers came to the University of Gloucestershire to give law students an opportunity to take part in a mock mediation exercise.
Mediation is one mechanism for resolving legal disputes outside of the court system that is potentially a quicker, cheaper and more amicable means of resolution. The essence of a mediation is that an independent third party (the mediator) seeks to identify the underlying goals and desires of the opposing sides to help encourage a resolution that might be invisible to the disputing factions. Unlike a judge, or arbitrator, a mediator can appeal to a wide variety of issues outside the narrow legal issue in dispute in order to find a mutually agreeable solution. In theory mediation provides a platform for the actual individuals involved in the dispute to have their voices, wishes and desires heard, rather than just a platform for hearing the legal arguments of their legal representatives.
There has been an increasing emphasis on the need for mediation as an alternative to the expensive and adversarial option of litigation, particularly in areas where amicable resolution would be especially beneficial, such as family law. In the Practice Direction, Pre-action Conduct and Protocols of the Civil Procedure Rules that relate to family law, it is made clear that litigation should be a last resort. The possibility of mediation or arbitration or other form of alternative dispute resolution (ADR) should always be considered. What is more, failure to engage meaningfully with a mediation process can have costs implications for the parties in any subsequent court litigation.
The mediation scenario that was the subject of the workshop involved the common situation of a cohabiting, but unmarried couple separating and arguing about ownership of their home (according to the Office of National Statistics there were 3.3 million cohabiting couples in 2016). In the scenario the shared home was legally owned by the female partner, but the male partner had made some financial contribution on purchase and had also made some significant physical improvements. The legal issue was, therefore, focussed on co-ownership of land and the principle of a trust. Students were asked to fill the roles of various characters in the dispute, including the couple, friends/relatives of the couple, trainee solicitor and pupil barrister.
After the initial introductions and once the students had read the background information about their characters, the mediator, Lise Seager invited both factions to a “neutral” space and encouraged the separating partners to explain their feelings about the situation, as well as allowing the legal representatives to explain the underlying legal position, as they saw it. The two opposing factions were then directed to separate rooms, one group being led by Charles King as the barrister of the female partner and the other group being led by Margaret Young as solicitor to the male partner. As in real life mediation, the mediator then shuttled between the two rooms encouraging each party to consider their key aims and to consider possible offers to make to the other side.
After some toing and froing it emerged the male partner’s underlying desire was to remain at the property given the “sweat and tears” that he had put into the property, whereas the female partner ultimately wanted to move on, so it was possible to reach an outline agreement about the male partner buying the female partner out.
The students adapted to their roles with enthusiasm, which made for a very interesting and enlightening experience. At the conclusion of the exercise, the students met again as a single group and some interesting observations were made about the differing goals of the individuals concerned and the slightly differing goals of their legal representatives and the potential impediments to agreement that individual personalities can have.
Charles King also provided some practical examples of the importance of mediation and the implications for costs in subsequent litigation. He gave one particular example where the winning party was only able to recover 25% of their costs from the losing party (the default position is usually that the loser pays the winner’s costs) because the judge found the winning party had declined invitations to mediate on several occasions and it would not therefore have been appropriate to award them the whole sum. Given that costs can often equal or exceed the value of the legal claim, this can be a very significant tool to encourage alternative ways of resolving disputes, such as mediation.
Mediation is only one form of “Alternative Dispute Resolution” (ADR) but, seemingly an increasingly important one. Other common forms of ADR are arbitration and adjudication (adjudication is independent, and less formal than arbitration), but both are more similar to the court process with the adjudicator or arbitrator making a judgment on the rights and wrongs of a parties legal position. By contrast, in mediation, the mediator is more of a facilitator, hopefully helping the parties to eventual agreement.
‘Resolution’, is an organisation of approximately 6,500 family lawyers and other professionals who believe in a constructive non-confrontational approach to family law and has produced two helpful guides which cover this area of law in greater detail.
For further information and best practice covered in the scenario the guides are:
By Jonathan Cooper and Michael Cooke