A Journey through Separation Ep6

Alexander Learmonth KC, New Square Chambers & Alex Troup KC, St John's Chambers

A podcast with Alexander Learmonth KC of New Square Chambers and Alex Troup KC of New Square Chambers. In this episode we discuss what is a mediation? What makes a mediation successful? What is not so important which people tend to focus on? What roles do people play at a mediation? What is the position regarding costs? If you want to learn more about mediation this is the podcast to listen to!

What is a mediation and what are the top tips for it to be successful?

 We were delighted to welcome not just one but two highly experienced barristers/mediators – Alexander Learmonth KC of New Square Chambers & Alex Troup KC of St John’s Chambers who both have busy thriving Chancery practices.

Mediation is something which is spoken about a lot but what does mediation in these types of cases look like?  We were truly honoured to welcome two very experienced barristers and mediators who were able to weave in their experiences and share top tips on what a successful mediation may look like.  Alex Troup KC of St John’s Chambers spoke with us from a mediator perspective and Alex Learmonth KC of New Square Chambers spoke with us from a barrister perspective.

What is a mediation?

A mediation is a flexible and confidential process used to settle a dispute between two or more people (although they can involve businesses).  It involves the appointment of a mediator who is an independent, impartial third person to help parties talk through the issues, to negotiate and come to a mutually agreeable solution.

There can be different types of mediation, for instance, family mediation is different from a civil mediation and we often recommend civil mediation in respect of disputes between unmarried couples, where there may be a claim for a beneficial interest in a property, for instance.

What is the benefit of a mediation?

Alex Troup KC explains that not only can it save time and money, avoiding the need to go to trial and running up excessive fees, it can be much more flexible than taking the matter to Court.

Alex Learmonth KC explains that a mediation is about cutting through some of the core issues and meeting in the middle so both parties need to be willing to compromise.  He agreed with Alex Troup KC in respect of flexibility; often an outcome is achieved that a Judge could never actually order which may meet the needs of both parties.

What makes a mediation a success?  

Alex Troup KC talks about how people need to get away from the fact that the matter needs to settle on the day.  Often great strides are made at a mediation which results in narrowing the issues for the matter to then settle post mediation.  He also suggests that people need to adopt an open mind.  Some people tend to set themselves a bottom line and do not want to move away from that.  However, new facts may emerge at a mediation and what you think the main focus will be may shift to something else you had not envisaged and so keeping an open mind will increase your chance of the mediation being successful.

Alex Learmonth KC highlighted some of the things which do not matter.  Lots of clients and legal representatives often worry about the mediation bundle and what should and should not go into it but frequently little reference is made to the bundle because the documents are already familiar to both parties and their representatives.

Another factor which people tend to focus on is the location of the mediation and ultimately it does not really tend to matter too much who hosts the mediation on the day.

What is the position on costs with a mediation?

Alex Learmonth KC explains that the cost of the mediator and venue is shared equally between the parties.  Information about the total legal costs incurred prior to the mediation will be available on the day as the parties’ representatives will pull this information together.  Often, the parties will agree to each bear their own costs and Alex believes it is best to get an agreement on costs at a mediation.

Alex Troup KC highlighted that it is important to get a balance between incurring legal fees and the point at which you mediate.  Prior to a mediation there is a lot of relevant preparation work which needs to be carried out as often these types of cases (whether in respect of a beneficial interest claim or a will and inheritance dispute) the work is frontloaded.  The documents and evidence need to be assessed to determine the merits of the case.  This will involve incurring costs.  If this work is not carried out and a mediation takes place too soon, you may be saving on legal costs but you are not necessarily putting yourself in the best position.  

If you could highlight one top tip for a mediation what would it be?

Both Alex Troup KC and Alex Learmonth KC agreed that it not just about the law.  It is about sometimes doing the right thing.  It is thinking about potentially needing to preserve a relationship, for instance, if you need to continue co-parenting or if you are in a dispute with a family member.  It is very difficult when you are involved in litigation to step back and look at how the relationship may need to look like in the longer term.  A mediation is always going to be a compromise for the parties involved.

At Roskilly & Mills we have lots of experience of working with clients to agree the best strategy to adopt, entering into negotiations and attending mediations.  We work with other professionals collaboratively to support our clients. We are aware of the difficulties our client’s face when dealing with difficult personal circumstances and we provide a supportive and empathetic approach when advising our clients.

For more information about Alexander Learmonth KC of New Square Chambers go to: Alexander Learmonth KC – New Square Chambers

For more information about Alex Troup KC of St John’s Chambers go to: Alex Troup KC – Chancery Barrister – St John’s Chambers (stjohnschambers.co.uk)