UK: Are We Being Conciliatory Enough?

Last Updated: 2 December 1998
Despite having been given much greater prominence in recent years, it is probably fair to say that alternative dispute resolution (otherwise known as conciliation or mediation) remains, in England at least, an under-used weapon in the litigator's armoury.

Notwithstanding the fact that all parties who come before the Commercial Court are positively required to consider Alternative Dispute Resolution ("ADR"), and to assure the trial judge that they have done so, it is not an option which features very highly in the order of priorities of those who are litigating against each other. Indeed, if the results of one recent poll in the North of England are to be believed, there are many parties for whom ADR remains a complete mystery and whose solicitors have not raised the subject with them at all.

There are a number of possible explanations for this. The cynical might say that lawyers are reluctant to promote ADR too strongly for fear that they will lose the fees that they would otherwise have earned in a full-blown trial or arbitration. Another possibility is that any party to litigation is concerned not to betray signs of weakness and there is or may be a prevailing concern that to suggest the conciliation route is to signal weakness to the other side. A third reason might well be that the parties may feel that the High Court, or the particular chosen arbitrators, are better able to determine the specific issues which have arisen in the litigation and that to turn them over to a mediator would mean placing the argument in the hands of a less experienced, or less qualified, individual. Finally, there is always going to be a proportion of litigants whose relationships have broken down to such an extent that they will only gain satisfaction by having their day in court.

Many parties feel that they should be entitled to have their dispute heard in the forum of their choice, and that it is wrong that they should be forced to use another medium when they have taken a positive decision as to the nature of the tribunal which is to hear their disputes. There is nothing wrong with that. It is, however, important to be alive to the possibilities of resolving a dispute through mediation, not least because litigation is time consuming and invariably expensive and, if pushed to a conclusion, may lead to irretrievable breakdown of a business relationship. The priorities for most parties engaged in litigation are to have the dispute resolved one way or the other as swiftly and as cost-effectively as possible. Tomorrow is another day, and business must go on. The advantages of ADR are that cases can be disposed of quickly, relatively cheaply and with honour intact on both sides.

Not every case will be suitable for such a process, but it is important that litigants are aware of the possibilities if only for their decision to pursue formal litigation to be an informed one.

How many parties, for instance, are aware that the London Maritime Arbitrators Association ("LMAA") has a set of conciliation terms? These are appended to the LMAA Handbook and contain a code pursuant to which parties can choose to refer their dispute to a conciliator chosen by them from the panel of arbitrators who operate under the auspices of the LMAA. The success or otherwise of any conciliation depends upon the willingness of the parties to be flexible in their approach to the dispute, and the ability of the conciliator to encourage the parties to pare down their arguments and submissions to the bare essentials, that is to say, the points which they consider to be most important to them. The conciliator must act with complete impartiality and integrity, since he is entrusted with leading each side to make an honest appraisal of its own case, and he undertakes that under no circumstances will what one side says or writes to him be passed to the other side without permission.

The parties are thus encouraged to think about their case in a different way, that is to say, that they move away from the litigation mentality, which is to throw in every argument that one can think of no matter how hopeless, and towards a slimmer vehicle containing the main points.

The documentation passing from each party to the conciliator is thus kept to a minimum. The conciliator will probably look at the pleadings and at any relevant contractual documents, but otherwise will limit his review to the submissions of each party. The conciliation itself takes place on neutral territory and can be conducted in any way that the conciliator sees fit.

Generally speaking, the process will commence with each side making a short oral presentation to the other and then retiring to separate rooms whilst the conciliator shuttles between the two to discuss the strengths and weaknesses of the case with each party. Again, the conciliator is charged with keeping confidence and saying nothing to one party which has not been sanctioned by the other.

The parties may or may not reach a resolution. Clearly, the conciliation progress will involve a certain amount of give and take, and each party must enter into the process prepared to move from its formal position in the litigation. The process by its nature recognises that compromise is often a preferable solution to hostile litigation. Its chief strength is that in many instances the commercial relationship between the parties will be preserved.

The conciliator does not give a view as to what is likely to happen in any formal proceedings unless asked to. If no agreement can be reached, the parties retire and carry on with the litigation. The conciliation process is regarded as having taken place entirely without prejudice to those proceedings.

If a solution is reached, and an agreement concluded, it is often best to ensure that the agreement is enshrined in an arbitration award which can then be enforced if one party does not subsequently live up to it.

We have participated in a number of such procedures and have achieved solutions in most cases. The procedure has acted as an effective shortcut through the litigation maze and at much less expense.

There are other such methods of dispute resolution available: neutral evaluation, expert determination, mini-trial, mediation, to name but a few.

Ultimately, one is looking to the goodwill of both parties to engage in dialogue with the genuine aim of resolving a dispute. Not every dispute will be suited to resolution in this manner but we should guess that there are many cases currently going through the courts and in arbitration which, given the chance, could be resolved with a modicum of goodwill. Certainly, in today's business climate, it is important that one at least has in mind the possibility of resolving a dispute in this manner, even if it is only on rare occasions that it will be used.

This note is intended to provide general information about some recent and anticipated developments which may be of interest. It is not intended to be comprehensive nor to provide any specific legal advice and should not be acted or relied upon as doing so. Professional advice appropriate to the specific situation should always be obtained.

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