Mediation Advocacy in England and Use by Blue Chip Organisations

We were honoured to welcome Alex Oddy, Head of ADR at Herbert Smith, to address two recent seminars with Core.

In the first, he spoke to a group of leading solicitors about mediation advocacy and ways of rigorously representing your client’s interests. His top tips included:

• learn to work with the mediator in order to do the best for your client
• remember that the parties own the dispute and the process
• prepare clients well in advance – manage expectations and conduct risk analysis
• understand the other side’s personalities and motivation - separate emotion from the issues
• simplify apparently complicated problems
• guard against any abuse of the process
• take responsibility for what happens
• be able to move from positional bargaining to principled negotiation
• remember that there may be no such thing as “failure” in mediation: the exchange of information is useful and may provide the conditions for later settlement
• keep in touch after if the matter has not resolved
• train your team in specialist mediation skills 
   

Alex also presented to a number of in-house lawyers. Based on his firm’s recent research into the use of mediation and other dispute resolution processes by 21 organisations with a combined turnover of over £400 billion, his themes included:

• the critical influence of the in house legal team on an organisation’s dispute resolution strategy
• users fall into 4 groups: Embedded Users, Ad Hoc Users, Negotiators and Non-Users
• mediation is overwhelmingly the preferred ADR process, followed by expert determination
• Embedded Users are focused on training: maintaining and refreshing the skills of their in-house lawyers and working hard to educate counterparties to accept and use ADR
• “We generally lean towards having ADR and mediation at an early stage because we see no downside to it.  Even if it’s not successful, there’s nothing preventing you from having another mediation further down the road.  It allows parties to prepare earlier and it focuses management much earlier.  Senior management don’t focus on the issues until they are actually confronted with them – attending the mediation focuses their attention.” 
  
  European Legal Director, Manufacturing/Industrial sector