Court of Appeal confirms that Mediation is a flexible process
The Court of Appeal on 19 June 2013, in the case of David Frost v Wake Smith and Tofields Solicitors EWCA Civ 772, confirmed that mediation is a flexible process and solicitors cannot be held responsible for final agreements not being reached, if the parties did not reach such agreements.
In this case the Court of Appeal considered whether a solicitor was in breach of duty in failing to render an agreement reached by the parties during mediation into a legally enforceable form.
The claimant had instructed the defendant solicitor in relation to an acrimonious dispute with his brother. The case was mediated and the parties reached an agreement in principle. Following the mediation, there was a dispute about the terms of settlement; eventually the agreement in principle became a final agreement.
The claimant sued the defendant for failing in his duty to ensure that the mediation ended in an immediate binding agreement, as opposed to one which was subject to further negotiation and completion at a later date.
The Court of Appeal confirmed the ruling of the court below that the defendant solicitor owed not such duty. The mediation had resulted in an agreement in principle which was, without more, sufficiently certain and complete in its terms to be legally enforceable. The solicitor, without the parties further agreement, could not conjure finality from their provisional agreement.
The Judge ruled that he was not surprised that the mediation in this case did not result in an immediately enforceable agreement. I quote from part of the judgment the key words that resonated with me from a mediator’s perspective:-
“Mediation has proved to be a flexible and immensely valuable process of dispute resolution. No doubt in some situations immediate and binding agreement is possible, whereas in others, of which this was a paradigm, flesh will need to be put upon the bones. It would be regrettable if any decision of this court were to cause practitioners to approach the process of mediation with anything other than maximum flexibility, although I need hardly emphasis that it will normally be part of the solicitor’s duty to advise his client, especially a lay client as opposed to a professional litigator such as a liability insurer, of the nature of the process and of the status of any agreement reached as a result”.