James Wilson, former Senior Partner of Ince & Co LLP, now a full time mediator with SeaMediation Chambers, discusses the benefits of Early Intervention as a useful addition to the dispute resolution toolbox.
WHAT IS EARLY INTERVENTION?
Early Intervention is a highly flexible process developed by SeaMediation Chambers that seeks to take the key ingredients that make mediation so effective, but to introduce them earlier and in a more dynamic and fluid way to help the parties achieve an informed solution much sooner. Despite its name, however, it is a process that can be used at any time in the course of a dispute, sometimes as late as the final stages of preparation for a hearing.
Like mediation, Early Intervention introduces the neutral mediator to provide a trusted and independent third party with whom each party can discuss the case on a ‘without prejudice’ and confidential basis. However, unlike mediation, those discussions tend, certainly initially, to take place over the telephone which may avoid the costs involved in gathering all the parties in one location for a formal mediation day.
FLEXIBILITY OF PROCESS
The initial goal of the Early Intervention process is to identify the blockages to a possible settlement. Often one or more of the parties require more information before they feel sufficiently informed to take a view on whether to settle a dispute. The mediator can work with each party to agree a road map which takes them most efficiently to the point where they can discuss an informed solution. That road map can be flexible and creative. It might for example include an exchange of specific documentation or evidence; it might involve a meeting between experts (with or without legal or commercial representatives present) or a referral of an expert or legal issue to a neutral expert for a binding or non-binding independent opinion. The mediator can also offer constructive challenge as to whether the benefits that might be derived from advancing aspects of the evidence are really sufficient to justify the related costs.
On occasion the mediator finds that the parties are, in reality, already sufficiently informed to take a view on settlement without incurring further time and costs of exchanging documents and evidence and the Early Intervention process simply opens up the negotiation – either through a series of individual phone calls with the mediator (or a conference call involving all parties) or through a settlement meeting.
Another unique feature of the flexible Early Intervention process is that one party to a dispute may approach a mediator and ask them to initiate contact with another party to the dispute to explore whether they are willing to engage in Early Intervention. This can be particularly useful when relations between the parties have reached an impasse and the involvement of the mediator offers an opportunity for each side to explain the impasse to a neutral third party.
HOW IT IS WORKING IN PRACTICE
A common theme in the feedback from parties using Early Intervention is that they like the flexibility of the process. That flexibility has seen it used in a very broad range of disputes: complex, high value cases where a road map has substantially reduced the costs; lower value claims where the amounts involved might not have justified a formal arbitration hearing or even a formal mediation meeting; multi-party cases where parties in different parts of a charterparty chain have no other ‘forum’ to talk to each other; multi-jurisdictional cases where, again, the parties might have no
common ‘forum’ to explore a global settlement.
One recent case offers a useful illustration of the process in action. It involved a four party charterparty chain with the parties located in different parts of the world: head owners in the US (represented in London); head charterers based in Norway (represented in Norway); sub-charterers based in Germany (represented by an FD&D Club) and shippers based in Canada (represented in Singapore). Three separate arbitrations were under way in relation to disputes arising as to the fitness of a cargo of nickel ore for loading. The arbitrations were progressing in the usual manner with the issues being played out in written submissions being mirrored up and down the chain of arbitrations but without any forum for direct dialogue between the head owners at the top of the chain and the shippers at the bottom, notwithstanding that the real issues were between those two parties.
The mediator’s initial conversations with each of the parties identified some key differences between the various experts. Subsequent rounds of conversations were directed at finding a shortcut to resolving those differences or at least facilitating a discussion of them direct between head owners and shippers. At the same time, the mediator was able to explore privately what each party might be willing to concede to see an end to the entire dispute. As the mediator continued those discussions with each party he was able to construct a notional ‘pot’ into which various parties would contribute sufficiently to satisfy those parties who would be net recipients in an overall settlement. Having then obtained all parties agreement to a formal settlement structure, the mediator was able to finalise the matter without the parties ever having to gather from around the globe for a formal mediation meeting. The cost of the Early Intervention process represented a saving of about 95% of the future costs that would have been incurred in concluding the three arbitrations.
WANT TO FIND OUT MORE?
You can find out more about Early Intervention at the SEAMEDIATION CHAMBER’S WEBSITE or by speaking to any of our mediators, without obligation, or our Senior Clerk, Rachel Sharman, on +44 (0)7824 879427 / CLERKS@SEAMEDIATION.COM.