Colin Russ, a renowned mediator, comments on these and other aspects of modern mediation in this article. It explores his practice and offers his tips for getting the most out mediation.
Before you became an independent commercial mediator, your 20-year tenure as Head of Litigation at DLA Piper’s Birmingham office was infected with a lot of misunderstandings. What has mediation been like as a result of your experience as a litigator lawyer?
Understanding the perspectives and feelings of everyone involved in a dispute is crucial. I am a former litigation lawyer, which allows me to understand their perspective and speak their language. Mediating for 22 years has allowed me to see how the parties bring different motivations to the dispute. This allows me to speak directly from my experience regarding the uncertainties and benefits of mediation and the risks associated with litigation.
It is important to understand how legal costs, CFAs and legal cost insurance work. This information is often a key dynamic in negotiations. I am familiar with the legal issues and litigation processes and can read and understand the mediation statement and the mediation bundle. These bundles have evolved over time to look more like trial bundles in many cases, which is a much better thing than it would be otherwise.
For the past 11 years, you have been ranked in Band 1 and Top Tier of The Legal 500 Guide for UK-wide Mediators. These two directories are considered to be the most important for UK-based mediators.
These directories have been the most trusted for lawyers looking for mediators. They do a lot of research on mediators and get feedback from lawyers who have worked with them. This helps Chambers and Legal 500 understand the industry and makes sure that the testimonials and feedback are accurate.
We would love to hear about the CDR Remote service you launched in the spring 2020 during the COVID-19 pandemic. What has this done to the UK’s commercial mediation landscape?
It was believed that all mediation would be stopped at the moment of the pandemic and first lockdown. It wouldn’t have been a problem if this were a temporary problem. However, it soon became clear that COVID-19 is not a long-term problem. To avoid a massive backlog, we had to find a way of continuing to work on all ongoing and future cases.
Many lawyers and clients were not aware of online video calling. Communication and reassurance were crucial to the delivery of CDR Remote. It was essential to be educated and familiarized with all available technology. After that, I realized that Zoom could be used to replicate the in-person mediation experience that we all had.
It was believed that the pandemic would end all mediation at once, from the very beginning.
Online security and confidentiality are important considerations for clients and lawyers. Zoom was quickly remediated any initial concerns. Lawyers had a lot of concerns about how this process would work in practice. Lawyers and clients, along with counsel, were able to get to know the technology through free pre-mediation calls online. I was able to explain the logistics and address any pre-mediation questions. It created a higher level of comfort for both the lawyers and the parties.
These pre-mediation calls online have proven to be extremely popular and are still part of the added value that I bring to the mediation process. These pre-mediation calls aren’t just for online mediations. They have become more popular than in-person mediations.
Your personality has been described as having a calm presence, being able to build rapport, being a good communicator, and having the ability to be very effective. How do you bring people together, even when it seems impossible?
Effective mediation is not possible without a secret ingredient. This is a multifaceted role that requires a variety of skills and experiences.
There are however some things you must do. Proper preparation is important for me. I reserve my mediation time to do this. It is important to be able to show that I have understood and read the documents and that I have identified key legal, commercial, and personal issues. This helps me gain the trust of the lawyers and their clients. This allows me to communicate faster and allows me to challenge and question positions accurately.
It is important to manage the process well. Sometimes it can feel like herding leopards! It is important to not lose the opportunity mediation offers to reach an overall resolution. It is important to not lose sight of the commercial outcome, and to inject energy when needed.
The parties will feel respected and heard if they are able to allow emotion and manage it calmly. This encourages them recognize the need for flexibility in order to reach a solution. It is important to remember that mediation, just like all things in life, is an ever-changing process. Mediators need to be open to the possibility of it changing. Mediators need to be flexible as well.
Online security and confidentiality are key considerations for clients and lawyers. Therefore, initial concerns about Zoom had to be addressed quickly.
In the Legal 500 Guide 2023, you were referred as “one of the most tech-embracing mediators in Britain”. What other services are you offering that embrace technology, besides CDR Remote?
CDR Remote was created out of the COVID-19 Pandemic. However, it has been clear that remote mediations are still a popular option after the pandemic. Although it is possible to conduct the process online, lawyers have recognized that it can be done. However, some types of disputes may not lend themselves well to online mediations. It is clear that clients and lawyers enjoy remote mediation. Although this is not the right place to get into all the details, there are many reasons remote mediations are so popular. It works.
My website has been offering lawyers the chance to book me for mediations in much the same way that we book tables at restaurants. My goal is to make booking me to mediation easy. To that end, my website provides complete transparency about fees, an online diary, and a booking request option. This has proven to be extremely popular.
You will also find a complete CV and a collection of tips for mediation that I send to my contacts whenever possible.
We would love to hear about your most difficult mediation.
Multi-party mediations involving claims by the main contractor against structural engineers were one of my most memorable. The proceedings also involved a steel fabricator.
The dispute was about major structural issues in five car showrooms built in different parts of the UK to sell automobiles. One of these showrooms was for a premium manufacturer. One case saw the structure of the showroom collapse and it was fatal. All sites required extensive rebuilding and remedial work. The costs, as well as business interruption losses, were also sought. The claims totalled more than PS60 millions.
The mediation dealt with complex contractual issues, expert evidence proving causation, and two mediations in one. Both structural engineers and fabricators sought to blame the other. The structural engineers and the fabricator reached an agreement, which led to a deal with the main contractor. After a 15-hour mediation, the agreements were reached that day. Although there were significant costs already incurred, the savings on future costs including trial was approximately PS2.5 million.
Colin Russ
Tel: +44 07816 782434
Colin Russ, a respected independent mediator in the commercial sector, is an example of a leader. He is a top-ranked mediator for Band 1 in the Chambers and Legal 500 Guides 2023. Before establishing his mediation practice, Colin was the Head of Litigation in the Birmingham office at DLA (later DLA Piper). He has built a successful, independent commercial mediation company over the past 22 years. Colin has many clients, including some of the UK’s most prominent law firms. They rely on his expertise in multi-party mediations with high-value, complex multi-issue disputes.