Mediation Case Documents – Never Accept Originals!
Mediators enjoy a great deal of professional protection, at the moment. Whether that will remain the case as mediation becomes ever more widespread, only time will tell. Certainly greater regulation, if not greater liability, seems inevitable.
Our currently privileged and protected position ought not, however, to engender complacency. Even though the walls that shield us are high, certainly when compared against other professions, we would be foolish to think ourselves immune in all situations. There are some in which we could be seriously criticised, compromised, or where our integrity may be called into question. That reflects on the mediation provider as well as us.
Indeed, I had a very close shave myself recently, in the same way that the Earth has the occasional close shave with a planet-killing asteroid…,
Party one ‘D’ and party two ‘B’ had found themselves in conflict over a lot of money. Each was highly critical of the other and both had specifically alleged that criminal acts had been committed by the other. Not wishing to understate it, the situation was ugly. Nonetheless, B had persuaded D to come to mediation as an alternative to B having to begin litigation.
Prior to the mediation D sent in a summary of his position. B, however, opted instead to dump the entirety of his receipts collection on to mediation firm ‘A*’, about seven lever arch files’ worth. They arrived very late, close to the day of mediation, so A* swiftly and diligently arranged for a courier to deliver them straight to my chambers. And it was at this point the aforementioned asteroid loomed into view…
The courier lost the receipts…
All of them.
It did not immediately occur to me that this might be a problem of such potentially apocalyptic proportions, as I suggested a further copy be made and scanned to my clerks, who would then, volume notwithstanding, be able to print a set for me. Unfortunately, the lost receipts collection had been B’s originals and there existed no copy. Although the courier claimed to be able to find them, they asserted that there was no way they could be delivered until after the mediation date. Certain issues suddenly presented themselves;
i. B had lost all of the materials vital to his mediation and his claim.
ii. If B failed to succeed against D, he might have a negligence action against A* or the couriers.
iii. If he found out what had happened, he might rightly be furious and both I and A* might lose all credibility, and as a result be unable to continue to mediate.
Fortunately, A* managed to have the missing files located, though there was no way to get them to the mediation prior to the start. The credibility issue still loomed large.
It was, with hindsight, fortunate that the parties insisted on remaining in separate rooms, a position that was never to change. As the mediation developed, it became clear that D was not interested in any course that would release any money at all to B. B became increasingly keen to demonstrate that his receipts would avail him, in particular, four or five that he asserted would leave D with absolutely no defence. This made life a little uncomfortable. (That asteroid looked likely to enter the atmosphere.)
A* had by now managed to get another courier firm to collect and transport B’s files to the mediation, and, as soon as they arrived, I was able to ask B quite calmly to identify for me his critical documents. Unfortunately, the documents he pulled from his files were not as clear-cut as had been suggested; one or two were not there at all. He thought they may have been on his computer, but he did not have that with him. The mediation eventually came to a close and the parties left. Both B and D thanked me for my assistance and efforts and to my knowledge never made any complaint.
Perhaps it is my sometimes cynical perspective as a barrister who regularly practices criminal law, but I foresaw the possibility of some other problems arising in that last stage of the mediation;
i. An unscrupulous individual might have asserted that his killer document had been in the files when they left his possession, but had now been lost.
ii. Such an individual could therefore create a secondary claim on the basis of negligence even though the original claim would have failed.
Fortunately, due largely to the sterling efforts of A*, disaster was at the last moment averted, and there was never any suggestion by B that anything was missing. Things could, however, have turned out differently.
The lessons that can be learnt for mediators and those who support them is this;
1. Never take possession of an original document.
2. If you are handed a document, do not presume it is a copy. Ask whether it is.
3. Always ensure there is another copy, somewhere, of any papers you receive.
4. If you are handed an original, make sure the owner does not leave without it.
5. I can think of no situation in which a party to a mediation can justifiably be unable to provide a copy rather than an original.
6. If an original document that one party wants another party to see is handed to you during a mediation, think carefully whether you should be the one to hand the original over, rather than letting the owner of the document do so themselves.
On this occasion the mediator-flattening asteroid headed back out to space. As astronomers will tell you, however, these things have a habit of coming around again.
Accredited Mediator; BA, Practicing Barrister