Interview by Adam Sebesta
Working as a mediator and advising governments and international organizations on mediation for 25 years, Bill Marsh argues that British lawyers finally came to realize that any process which is good for clients is also good for them.
You were one of the advisors to the Slovak Government in 2004, whose task was to help draft the Act on Mediation. How do you reflect on this experience after years?
It was a pleasure and a privilege to work with the Ministry of Justice in Slovakia on their mediation reforms. I led a team of experts from the UK, and we worked for three years on this project. When considering mediation legislation, it is important first to understand what policy and vision is being pursued, because all legislation is simply the enactment of policy and vision. So we had many discussions at this level before considering the details of the legislation. My work with the Government of Slovakia inspired me to adopt a similar role with other governments, and since then I have worked with more than 20 other governments.
What was your philosophy during that process?
To me, introducing mediation into a legal system is not just about the technicalities of how it will work – such as confidentiality, inadmissibility of evidence, neutrality of the mediators, and so on. These are of course important, but they are not the only thing. Introducing mediation is about trying to change the way in which people look at conflict – whether they can have the courage to talk, rather than simply to use the court process. This is a much wider challenge that simply passing a law.
Mediation is still rarely used in Slovakia. Out of 80.000 civil law disputes in 2013, the courts referred almost 7000 cases to mediation. However, only 64 ended up being solved in mediation. What in your view causes such remarkably low number?
These days, unfortunately I do not have the chance to visit Slovakia for business, so I am not up to date with the reasons for the low number of mediations. It is important to say that passing mediation legislation is the easy part. Encouraging people to use the process can be harder. From the statistics you quote, it seems that many people have tried mediation (7,000 cases in 2013) but the success rate is low. Whilst I cannot explain the reasons, it could be caused by a number of factors.
“Most of all, I find that business people tell me that mediation provides them with certainty – they know the outcome of the dispute, and can get on with running their businesses.”
What are these factors?
You have to ask yourself if those cases were ready for mediation? In other words, do the parties have enough information to enable them to make informed settlement decisions? Are the parties and their lawyers properly informed about what mediation is, and how it can help? Do the mediators need further assistance?
Perhaps a deeper research is desirable.
It is always important to understand the reality of what is going on, and not just take statistics at face value. I would strongly encourage research into the reasons for a low success rate, and indeed into all other aspects of how mediation is operating in practice. It is possible that there is a very simple explanation which could be corrected if understood.
Due to implementation of EU legislation, the Act on Mediation has been amended. The amendment makes some provisions of the Act stricter (e.g. mediators shall have a registered office). Do you think that such strategy will enhance mediation as profession in Slovakia?
I have not seen the changes introduced, so I cannot comment on this. In general, however, it would be important to understand whether the former provisions of the Mediation Act were causing any problems. For example, is the fact that mediators do not have a registered office really causing a problem? If not, then although this change could be important for other reasons, it is unlikely to increase the amount of mediations taking place.
What is the major struggle in mediation?
In general, the biggest challenge in mediation is developing demand for it, not imposing stricter governance on mediators. But there may have been technical reasons as well why the Act on Mediation needed to be amended, simply for compliance with the EU Directive.
“Generally, compared to litigation, mediation is faster, cheaper, and leaves the parties in control of the outcome.”
Mediation is generally not very well known in Slovakia. Even many attorneys are still not aware of the possibilities of mediation. How could the awareness be raised?
There are lots of ways to raise awareness – articles, conferences, information in courts, etc. For me, the most effective has always been to find people who have been through mediation (as parties) and who are willing and permitted to talk about their experiences of it. They are the people whose opinions about it really matter.
What are the main benefits of mediation compared to litigation?
In my work as a mediator, I meet business people every week who are relieved and happy to resolve their disputes in mediation. They are the ones who talk about the benefits of it. Generally, compared to litigation, mediation is faster, cheaper, and leaves the parties in control of the outcome. Mediation also enables a more sophisticated and nuanced discussion of the case and enables parties to discover and consider all the settlement options, before making a choice about what to do. Most of all, I find that business people tell me that mediation provides them with certainty – they know the outcome of the dispute, and can get on with running their businesses.
In Slovakia, a litigation of a business dispute took 14 months on average in 2013. What is more, in Slovakia’s capital – Bratislava, the proceedings lasted 32 months on average. In contrast, how long does it usually take to mediate a business case dispute in the UK?
Typically, in the UK, a case in mediation takes one day, sometimes two days. That includes highly complex and high value cases, where the parties are disputing many millions of pounds or dollars, where there is complex litigation or arbitration under way, and the parties are very entrenched.
In preparation for that, it might take about 4-5 weeks to arrange the mediation and prepare for it. But it can be faster if it is urgent. For example, I recently mediated a case which was referred to me only 3 days earlier.
In the UK, mediation has been on a continuous rise. What are the triggers of its growth?
The main triggers for growth in the UK have been the clients – major corporate clients such as banks and insurance companies, who made it clear to their own lawyers that they wanted to try mediation. They had a good experience of it and so it continues. I would put lawyers on the second place. Lawyers came to realize after some initial reluctance that any process which is good for clients is also good for lawyers. So now, for example, all the leading law firms will refer to the use of mediation on their websites, as a positive feature of their services.
“The main triggers for growth in the UK have been the clients – major corporate clients such as banks and insurance companies, who made it clear to their own lawyers that they wanted to try mediation.”
What about the government and the judiciary?
The UK government is a regular user of mediation, when it is involved as a party in disputes – such as contractual disputes, employment disputes, etc. This gives people confidence in the process. The judges have been very supportive of mediation, and often encourage parties to use it.
What is your view on mandatory mediation, e.g. in family law cases?
In general, I am not in favor of it. I prefer parties to make the choice to attend a mediation, because it indicates a personal commitment to try to find a resolution. Perhaps family law cases are the one exception to this, since the strength of emotions involved can make it harder for those parties voluntarily to agree to mediation.
What would be your advice to people interested in becoming mediators?
Being a mediator is a wonderful career! I encourage anyone who is interested to train as a mediator. But after that it can take time to get work, so be patient. Being a mediator is not just a professional role that you can take on or take off, it is much more a way of life and a way of looking at the world. It is about always seeing the possibilities even in a situation that seems to have no hope.
How does a daily routine of Bill Marsh as a full-time mediator look like?
Let me give you an example of my week. On Monday, I was preparing myself for a commercial mediation, reading the papers, speaking with the parties and lawyers on the phone. On Tuesday, I was finishing a report for a government (not the UK) I am advising on the introduction of mediation into its legal system. I have spent considerable time in that country, in discussions, and am now finalizing my report. I was also making plans for an overseas trip to mediate a dispute in another country.
Any mediations on your schedule?
On Wednesday, I was conducting a commercial mediation. It was a case in the banking sector, with a claim for approximately GB Pounds 5 million. The mediation lasted all day (about 9-10 hours) and finished with a settlement agreement being signed by the parties. Job done! On Thursday – I was preparing for a commercial mediation, reading the papers, speaking with the parties and lawyers on the phone. Finally, on Friday, I was conducting a commercial mediation. It was a case concerning shareholders in a business, with a claim for approximately GB Pounds 8 million. Good progress was made and we are meeting next week to complete the discussions and (I expect!) sign a settlement agreement. So that is a typical week for me!
This interview has been originally published on najpravo.sk (in Slovak language).
Bill Marsh is considered to be one of Europe’s most experienced international mediators, awarded “Global Mediator of the Year by Who’s Who Legal 2014-15, active in the field of mediation for 25 years. He has advised many governments on mediation (including Slovakia), as well as international organizations and institutions (e.g. UN, European Commission, World Bank). He has also been academically active as an adjunct professor at the Hong Kong Shue Yan University. He earned a Bachelor degree in Law at the Durham University in the UK. He also operates as a peace envoy in religious, ethnic and political conflicts. Details can be found at www.billmarsh.co.uk