Speaker's Corner with Iain Travers of The Property Mediators

Patience in truck loads. Empathy. Tenacity. An understanding of the law, commercial realities and emotional issues. An ability to connect with people.

Each mediation is interesting in its own way, but what makes a property dispute interesting and memorable is the people involved. It is the people, who come from many different walks of life, all of whom are putting their trust in you to try and help them find a solution, that make mediation such a rewarding experience from a mediator’s perspective. The difficulty with this question, of course, is confidentiality; but without being in breach, I can talk in general terms. Specifically, rights of light are always interesting, because of the complexities of the law and the value of what is at stake. Nevertheless, that herd of dairy cows on a muddy track in Somerset had their own view on how wide the right of way should be from the milking shed to their green pasture, and me standing there with my tape measure was of no real interest to them.

The work done prior to a mediation is very important. Not just fixing the date, but also circulating a draft Agreement to Mediate and Questionnaires, making online arrangements if the parties are not familiar with the process, and reading the documentation supplied by the parties, frequently at the last minute and more voluminous than is necessary. Establishing a rapport with both parties in pre-mediation phone calls and getting an understanding of the issues and the personalities involved is also vital. So, for every day of mediation, there is probably, on average, a day of preparation. In addition, there will be days spent writing blogs, running training courses, meetings with our colleagues at The Property Mediators, dealing with peer reviews and learning from each other’s experiences, keeping our website fresh and up to date, and all the other little things that go with maintaining excellence within such an organisation.

Then, the mediations themselves. First, we have to get there, and they are not all in smart solicitors’ offices. A long muddy track to a dairy farm in Somerset sticks in my mind, but we could be anywhere in the country with an early start (or a room in a hotel the night before) and a long train journey before we get down to business.

No two mediations are the same. The issues are different. The individuals are different. The objectives of the parties will be different. However, the aim is the same; to establish common ground, and build on the positives to create a platform for a settlement. There will be different strategies for achieving that outcome, some of which the mediator will use frequently; some of which the mediator will only use occasionally. At the end of a successful day’s mediation, whatever time that may be, the mediator gets a tremendous buzz from having helped the parties to achieve what may have seemed unlikely at the outset.

The variety of matters has no real boundaries, other than that they all relate to property in some way. They include commercial landlord and tenant, Electronic Communications Code, inheritance family provision, neighbours, boundaries and easements, professional liability, residential leases and vendor and purchaser disputes, to name but a few.

Both whilst in private practice, and now as a mediator, I have always found Mishcon de Reya to be highly professional and a pleasure to work with. I am not just saying that because I am doing this Q&A. They are a firm which, over the last decade and more, have established themselves as a leading real estate disputes practice. I have done a number of mediations with them, and they are tough but fair and take realistic positions.

Uncertainty in the litigation process is undoubtedly a key driver in the parties deciding to mediate. A majority of mediations take place when a trial or some hearing date is looming. However, mediations in the early stages of litigation are becoming more common, and are a welcome development. The parties will have become less entrenched, and costs should be less problematic. The consequences of market uncertainty or turmoil are more likely to be seen in a greater number of disputes. COVID-19, for example, produced a significant number of disputes, some of which have been mediated by myself and my colleagues. Whether market uncertainty has made people more likely to turn to mediation is more questionable.

Remote mediations existed before the pandemic, but Zoom provided a platform to cope with the demand created by the pandemic. Although surveys suggest that online “commercial” mediations are still about 64% of the overall market, our experience at The Property Mediators is that, to a significant extent, people have come back to in-person mediation. One advantage of online is when it is, for whatever reason, difficult to get everyone into the same building. Parties and the mediator do not have to incur the time and cost of travel. It is here to stay as a format. However, sitting in front of a screen for eight or more hours, moving people between breakout rooms, and moving between rooms and developing a rapport with individuals, can be much more challenging. Also, parties tend to behave differently online. I encourage people to have their own screen, rather than sit in front of just one screen with the rest of their team. It may be more convenient for them, but body language and nuances can be almost impossible to interpret online and arranging side meetings can be more difficult.

Mediation has become an established part of the litigation process. The spectre of compulsory mediation has been raised by the Ministry of Justice, and of course many dispute resolution clauses require the parties to mediate at an early stage. Whatever one may think of the MoJ proposals, the world of mediation will inevitably become more regulated; qualification, training, peer review and quality control; all of which are good in themselves, but it is important that the parties should retain the ability to choose who they think is the right person to help them resolve their dispute, rather than having someone imposed on them.

My professional life has been spent in the contentious field. I knew that that was what I wanted to do as soon as I started my practical training. My advice to a young lawyer would be a question; is contentious work what you really want to do? If so, get as broad an experience as possible. A young lawyer needs to learn that it is not just the law that the client wants advice on, but also strategy and what it is he can do, not what he cannot do. The young lawyer should get involved in mediations as soon as possible, so as to understand how they fit into the litigation strategy, and so as to develop their negotiation skills. We at The Property Mediators frequently take trainees and junior associates as observers to give them experience of what mediation is like from our perspective.