The CPR European Advisory Board (EAB) continues it series, “Meet CPR’s Distinguished Neutrals in Europe” and today it presents its next Q&A, with Gill Mansfield.
Gill is a UK qualified barrister and CEDR accredited commercial mediator with over 20+ years international legal and commercial experience the majority of which has been spent as in-house counsel. She has held Head of Legal, General Counsel & Company Secretary, and Senior Counsel roles across the media, entertainment, creative and digital/technology sectors, negotiating complex deals and resolving international commercial disputes. Her experience includes working with innovative new businesses and disruptive start-ups as well as award winning TV producers, multi-national corporations and household name brands.
How did you get your start as a neutral?
I trained and practised as a barrister before moving in-house, so litigation has always been part of my professional DNA. Whilst in-house I managed cross-border commercial and intellectual property disputes and litigation in courts throughout the World. My first experience of mediation was representing a media company as its Head of Legal in a court ordered mediation of a commercial dispute that was being litigated in California.
This judge-led session was very different from the mediation process that I use today. There was no joint session. The two sets of parties never met and were never invited to meet at any point during the day. However, the process was enough to pique my interest in mediation. A friend later recommended the CEDR mediation training and that, as they say, is history.
It’s fair to say that having experienced mediation as a party has definitely influenced my approach as a mediator.
Who is your dispute resolution hero/heroine?
That would have to be the late and much missed David Richbell. I, like many other UK mediators, owe a huge debt of gratitude to David as both a trainer and as a mentor.
David was always enormously generous with his time and his expertise. He saw any mediation where he didn’t take an assistant mediator as a wasted opportunity, and he encouraged those of us who he felt had promise to be actively involved in his mediations. I can still vividly recall the excitement when David first suggested that I run one set of mediation meetings solo whilst he ran another set of meetings in parallel.
He personified all of the character attributes that one aspires to as a mediator and dispute resolver: warmth, good humour, inexhaustible patience and unassailable positivity, utterly unflappable, respectful and respected. The things that I learnt at his side during those early years as a mediator continue to inform my mediation practice every day. A true hero of the mediation profession.
What advice would you give to the younger generation looking for a first appointment as neutral?
It’s important to choose the right mediation training course but taking a five-day training in itself doesn’t make you a mediator. It’s just the start of your journey. So many people finish their training completely enamoured with the idea of mediation, passionate about the process and expecting the work to find them. Sadly, it won’t. I spent the early part of my mediation career working with some the UK’s most respected mediators first as an observer and then as an assistant. In dispute resolution, as in any other field, learning your craft is vital. Seek out people who you can learn from and opportunities to develop your mediation skills. Working with community mediation organisations can be a great way to continue to build your skills (but don’t be surprised to find that many other aspiring mediators are also seeking this experience too). The likelihood is that your first paid mediation will come from within your own network and in order for that to happen you need to build credibility and expertise. You also need to build your network both in the industry and amongst those who instruct mediators. That takes time and commitment. It’s not going to happen overnight and there is no silver bullet.
What is the most important mistake you see counsel make?
The biggest mistake that I see counsel make is failing to understand that their role in a mediation is very different from their role in the litigation process, and consequently preparing for a mediation in the same way that they would prepare for a trial: adopting a positional and adversarial approach.
Those counsel who are most successful in representing their clients at mediation are the ones who understand that it requires a shift of mindset and a different set of skills. I often tell counsel to set their litigator hat aside and put on their negotiator hat. The mediation process allows everyone to take a step back from the litigation and it creates a real opportunity to explore options and solutions. The fact that the discussions are confidential and without prejudice creates a safe space to work collaboratively with the mediator (and potentially opposing counsel) but this does require a shift in perspective and approach.
I see this very clearly in the way counsel approach Position Statements and their opening comments at the mediation. Both of these are opportunities to speak directly to the client on the other side of the dispute. They are opportunities to engage, persuade and influence the decision makers. This is something that you don’t have the opportunity to do in the usual course of litigation where everything is filtered via lawyers. Those counsel who simply rehash the pleadings, or take an adversarial approach, are missing a valuable opportunity.
If you could change one thing about commercial mediation, what would it be?
Commercial mediation still has a problem with the lack ofdiversity. Perhaps that’s not surprising given that many commercial mediators are drawn from the legal profession where this is also an issue.
This is slowly changing as the traditional stereotypes of what a mediator looks like are being broken down. However, we need to be vigilant to make sure that talented mediators who are female, black or from an ethnic minority or who have a disability have the opportunities to advance in the profession.
It’s heartening to see that law firms are increasingly asking mediation providers to recommend mediators beyond those who might be seen as “the usual choices” and asking to see “new faces”, but we still have a long way to go to be a diverse and inclusive profession which properly represents the diversity of the communities that we serve.
For which types of conflicts would you recommend ADR?
I’m going to focus on commercial mediation here as that is my particular specialism within ADR. In my view, the vast majority of commercial disputes are suitable for mediation. There are however certain types of cases where mediation is particularly beneficial. These include cases where:
- a speedy and cost-effective resolution of the dispute is desirable;
- the opportunity cost in terms of wasted management time and legal expenses outweighs the potential benefits of litigation;
- there are continuing personal or business relationships or ongoing contractual relationships that would be harmed by litigation;
- a confidential process is required to avoid adverse publicity, preserve client goodwill and protect reputations;
- control of the outcome of the dispute is important;
- a party wants an outcome that could not be achieved in court.
The litigation process is essentially binary: it’s win-lose and a win is usually quantified in purely monetary terms. In contrast the mediation process allows the parties to craft a settlement agreement that meets their legal, commercial and personal needs. Whatever those might be. In a commercial context this could involve renegotiating the terms of a contract or agreeing terms for the transfer or purchase assets. In terms of meeting personal needs, it might be gaining a better understanding what happened and why and receiving an apology. These types of outcomes simply can’t be achieved through litigation. I recently mediated an IP infringement case where much of what was finally agreed between the parties could not have been ordered by a court.
Mediation can also be used in the context of other ADR processes: when used within the context of an arbitration it may resolve the dispute completely or at the very least it can help to clarify and narrow the issues to be resolved.
In your view, what makes CPR unique?
For me the thing that makes CPR really unique as an ADR provider is that it is not just an organization of neutrals and dispute resolvers. Its membership and committee structures bring together in-house counsel across a range of different industries, partners and associates from leading law firms, academics and distinguished neutrals in a collaborative environment. It is this broad stakeholder engagement and dialogue that gives CPR a unique perspective and allows it to be responsive to the needs of users of ADR.