Litigation Trending - Procedural Mediation - a new approach to case management
27 January 2022
Most readers will be familiar with the use of mediation in settlement discussions: involving an independent third party to assist the parties in achieving a negotiated settlement.
Equally, we suspect many will be familiar with seemingly intractable wrangling about procedural issues in the course of a dispute which may consume a great deal of lawyers' time and clients' money and lead to not insignificant delay.
A novel initiative that we have recently encountered, and which received judicial endorsement, is the suggestion of 'procedural mediation': the use of an independent third party to help the parties resolve procedural issues.
Of course, ultimately, the court has an important role, and indeed duty, in promoting effective case management. That role will not be displaced and the involvement of a procedural mediator may require judicial approval for that reason. But it can take time for an application to be brought on and it may carry costs risk. A skilled mediator who invests time in understanding the details of a dispute and who is readily available to facilitate discussions on a without prejudice basis may well play a valuable role, complementary to the court, in helping the parties to resolve procedural issues.
The time and expense involved may mean that it is only utilised in particularly large and complex cases, at least initially. But we think it is an intriguing concept and would not be surprised to see it more frequently. We would be interested in the views and experience of others in the disputes community.
Authors: Jon Gale (Partner), Tim West (Senior Associate), Aaron Marchant (Solicitor)
