I have been a forensic accountant and expert witness now for 30 years, and have written hundreds of reports and given expert evidence scores of times across a very wide range of subjects: commercial disputes, director and partnership disputes, matrimonial valuations, personal injury and fatal accident on the civil side; fraud, asset tracing, drug trafficking, confiscation of assets on the criminal side, to name but a few. I led the team of accountants defending the chairman of Barlow Clowes (who was found not guilty on all charges); and I was prosecution expert in the infamous Rotherham mouldy chicken case, in which convictions and sentences of up to 7½ years were achieved against a gang who were converting condemned poultry into food for human consumption.
The common factor, though, is that in all these cases I was engaged as an expert accountant, and that as an expert, I could use only my training and experience as an accountant to assist the Court. The principle comes from the very old case of Foulks –v- Chard (1783), in which John Smeaton, the man famous for designing a lighthouse which would survive storm and tempest at Eddystone, was giving evidence in a case concerning erosion of a coastline and silting of a harbour. Opposing counsel protested that he was expressing his opinion when giving evidence, but the judge overruled him, saying that he had often relied on Mr Smeaton’s assistance in such matters. From this came the rule that a man of science, when giving evidence, may express his opinion, but only within his own science.
So the expert witness industry developed, until now it seems that some cases need experts on a huge range of subjects, down to the follicles of the left nostril!
Some lawyers think the same must apply to mediations; that, because some deep and complex points of law are involved, the mediator needs to be a QC, or even one of the rapidly increasing band of retired judges who have trained as mediators.
Is this right? I respectfully say it is not. I do not denigrate retired judges, some of whom no doubt become excellent mediators (and I have had the privilege of co-mediating with Sir Alan Ward, retired Court of Appeal judge and now an excellent mediator) but I do say that it is not necessary to have as mediator a senior lawyer for a complex legal case, a QS for a construction case, a motor engineer for a vehicle case, a law cost draftsman for a costs case… Need I go on?
If such specialist mediators were required for each type of case, I would not have been able to mediate successfully disputes concerning all those things, plus boundaries and rights of way, Inheritance Act and ToLATA, defamation, and so on. And I have.
So how does a humble chartered accountant get involved in cases such as this? The answer is that, to start with, I was booked as a mediator on cases which the parties (or their lawyers) thought I would understand as an accountant – business valuations, partnership disputes, and so on. But then, seeing that the skills of a mediator are transferable, the same lawyers or their colleagues would book me as mediator because of my mediation skills alone.
The point is that the mediator can only listen, not give advice; so it is a waste having a senior lawyer as mediator because of his knowledge of the law. He can’t use it except to understand the papers initially, because if he starts to give advice, one is getting into evaluative mediation, whereas the model we use in the UK is facilitative mediation: the mediator is there to facilitate agreement between the parties.
Further, if there are very complex matters of law or technical issues, an expert in such matters is at risk of delving into the complexities, and getting bogged down in the detail. In mediation that is fatal; the discussion must be kept moving, big picture issues should be considered, and all effort should be put into finding the solution that the parties can live with.
Thus, after initial stating of cases, and after the pouring out of emotion in the early meetings (it happens!), the mediator should guide the parties to consider what they can live with, not who is right. The mediator’s listening skills are vital here; the mediator should have two ears and only one mouth, and I often say, only partly in jest, that all that every party needs is a good social worker!
The technical and deep legal issues should be set out in the Mediation Position Statement, so that everyone attending (including the mediator) understands the lingua franca of the particular industry or the legal concepts. After that, concentrate on the big issues and on what costs and management time may be saved by an agreement today, and you will be well on the way to satisfying your clients’ true needs – an end to the worry and expense of the dispute.
So in a word, forget about the specialist mediator and choose your mediator because he is good at mediation.