What is the Key to Effective Post-COVID Mediation?
Even as mediation grows in popularity as an alternative to costly litigation, there remain various barriers to even greater uptake in the wider legal and business sector. These barriers are not insurmountable, however, as was proven when COVID-19 lockdown restrictions led to a surge in remote mediation.
Prolific mediator Colin Russ comments on this and other facets of modern mediation in this article, which explores his own practice and his advice for making the most out of mediation.
Before becoming an independent commercial mediator, you were Head of Litigation at DLA (now DLA Piper) in their Birmingham office for 20 years. How has being a litigation lawyer shaped your approach to mediation?
It is important to understand how everyone involved is seeing and feeling about the dispute. My background as a litigation lawyer enables me to understand the lawyer’s perspective and speak their language, and mediating for 22 years has helped me understand the way in which parties bring different motivations and interests to their dispute. It also means I can speak from first-hand experience about the risks and uncertainty of litigation and the benefits of achieving a certain outcome through negotiation at the mediation.
Understanding the way in which legal costs, CFAs, legal cost insurance and litigation funding works is also helpful, as these aspects are frequently an important dynamic in any negotiation. My familiarity with legal issues and litigation processes also helps me to read and understand the mediation statements and mediation bundle – which in many cases have grown over the years to more resemble trial bundles – far more quickly than would otherwise be the case.
You have also been ranked in both Band 1 of the Chambers Guide and the Top Tier of the Legal 500 Guide for UK-wide mediators for the last 11 consecutive years. What do you think is the significance of these two leading directories for mediators in the UK?
They have always been the main ‘go-to’ directories for law firms looking for mediators as, of course, both guides are also for the lawyers themselves, so they do trust the rankings. The work they do in researching mediators and obtaining feedback from the lawyers that have worked with the mediators is crucial; it helps Chambers and Legal 500 to understand what is going on in the industry and ensures it is real feedback and testimonials that ensure the mediators are ranked accordingly.
Tell us about your CDR Remote offering that you launched during the first part of the COVID-19 pandemic in the spring of 2020. How has this changed the landscape of commercial mediation in the UK?
From the outset of the pandemic and the first lockdown, it was thought that this would stop all mediation in its tracks. This would not have been too much of a problem if it were in the short term; however, it quickly became apparent that COVID-19 was not a short-term problem. We had to find a way to continue working through all the ongoing and upcoming cases to avoid a huge backlog.
Online video calls were still an unknown to many lawyers and their clients, so communication and reassurance were key to delivering CDR Remote. Urgent self-education and familiarisation with the available technology was necessary. Going through that process, I realised that the in-person mediation experience with which we were all familiar could be very accurately replicated though the use of Zoom (in particular), as well as other platforms.
From the outset of the pandemic and the first lockdown, it was thought that this would stop all mediation in its tracks.
For lawyers and clients, online security and confidentiality were key considerations, so initial concerns about Zoom needed to be and were quickly remedied. There were also entirely understandable concerns amongst lawyers as to just how the process would work in practice. By proposing free online pre-mediation calls, it was possible for lawyers and their clients (and counsel where involved) to become familiar with the technology and for me to talk through the logistics, as well as addressing the usual pre-mediation issues. This ensured a greater level of comfort and confidence for the parties and lawyers on the day.
These online pre-mediation calls have proved to be exceptionally popular and continue to be part of the added value I try to bring to the mediation process. They are not confined to online mediations, but have also become popular ahead of in-person mediations.
You have been described as ‘a calming presence’, ‘highly personable’, ‘very effective’, ‘thoroughly prepared’ and having ‘a knack for building rapport’. What do you think is the secret to being an effective mediator, and how do you bring parties together when they are seemingly far from resolution?
There is, of course, no secret magic ingredient to effective mediating – and if there was, I probably would not share it! It is a multi-faceted role that involves bringing together a whole raft of skills and experience.
However, there are some essentials. Proper preparation is key for me, and I ring-fence my mediation days to achieve this. Being able to demonstrate that I have read and understood the papers and identified the key legal, commercial and personal issues helps me to gain the lawyers’ and their clients’ trust. This speeds up the process of communication and enables me to question and challenge positions effectively and accurately.
Managing the process well (and sometimes it feels like herding leopards!) is also crucial to avoid losing the opportunity that mediation represents to achieve an overall resolution – wherever possible getting away from the dreaded ‘half past four first offer syndrome’ that has bedevilled mediations from early days. It is vital to never lose sight of the commercial outcome and to instil energy into the process when it is needed.
Allowing emotion and managing this calmly means that the parties feel respected and listened to. This, in turn, encourages them to acknowledge the flexibility that will be needed to get to a resolution. I think it is also important to recognise that, like everything in life, mediation is an evolving process and mediators need to be alive to this. It is not just the parties who need to be flexible in their approach; this is also a key requirement for mediators.
For lawyers and clients, online security and confidentiality were key considerations, so initial concerns about Zoom needed to be and were quickly remedied.
You were referred to as ‘one of the most technology-embracing mediators in the UK’ in the recently published Legal 500 Guide 2023. Aside from CDR Remote, what other services do you offer that embrace technology?
CDR Remote was born out of the COVID-19 pandemic, but what has become evident is that remote mediations remain a popular option post-pandemic. Lawyers have recognised that the process can and does work effectively online, although it may be the case that certain types of disputes lend themselves more readily to an online process. What is quite apparent, though, is that lawyers and clients enjoy working and mediating remotely. This is not the place to go into the details, but there are a variety of reasons why remote mediations have proved popular. Chief amongst these is simply that it works.
For many years now I have offered lawyers the opportunity to book me via my website for a mediation in the same way we all book a table at a restaurant. My objective is to make booking me for a mediation as simple as possible, so my website offers complete transparency on fees, a ‘real-time’ online diary and a booking request facility which has proved to be extraordinarily popular.
The website also includes a full CV and, inter alia, a collection of mediation practice tips which (where time permits) I email to an ever-increasing number of contacts.
Can you tell us about one of your most challenging mediations?
One of the most challenging mediations I remember was a multi-party mediation relating to claims brought by the main contractor against a structural engineer, and the proceedings of which also involved a steel fabricator.
The dispute related to major structural problems in the steel frames of five car showrooms erected in different parts of the UK for a major automobile sales network, which involved a premium car manufacturer. In one case, catastrophic failure of the showroom structure had occurred and fatalities had only narrowly been avoided. Extensive rebuilding and remedial works were required across all sites and the costs of these, together with business interruption losses, were sought. The total claims were for more than £60 million.
The mediation involved consideration of complex contractual issues, expert evidence going to causation and two mediations within one as the structural engineer and fabricator sought to blame each other. Ultimately, an agreement was reached between the structural engineers and fabricator which then facilitated an agreement with the main contractor. The agreements were entered into on the day after a 15-hour mediation process. Very significant costs had already been incurred, but the savings in future costs up to and including to trial amounted to around £2.5 million.
Tel: +44 07816 782434
Colin Russ is a leading, independent commercial mediator. He is a top-ranked mediator in Band 1 of the Chambers and Legal 500 Guides for 2023. Prior to setting up his mediation practice in early 2000, Colin was Head of Litigation at the Birmingham office of global law firm DLA (later DLA Piper). In the last 22 years he has since built a thriving, independent commercial mediation business. Colin’s clients include many of the UK’s leading law firms, who call upon his considerable expertise in high-value multi-party mediations, often involving complex multi-issue disputes.