Mediation is heavily encouraged by the courts. Therefore it is useful to consider the obstacles to a successful mediation ensuring the best possible prospects of reaching a solution.
Here is a summary of obstacles that need to be considered and overcome:
- Use of evidence – If a party’s position is aided by expert evidence, then get it prepared. Also don’t be unwilling to reveal it, as the whole aim of the process is to settle the claim on the day. Where necessary use exhibits such as plans or photographs if this will help discussion (a picture can speak a thousand words).
- Inflexibility – Without flexibility there is minimal chance of settlement. ‘Give and take’ is essential but what you ’give’ does not always have to be of monetary value – sometimes an apology is enough.
- Unrealistic behaviour – Credibility is fundamental and if an offer prior to mediation has been made it is unlikely that your opponent will accept a less favourable or similar offer.
- Hidden agendas – When parties and lawyers turn up at mediation to simply ‘tick the box’ to show that they have attended a mediation, they are not entering into the spirit of the process and it is a waste of everyone’s time and costs.
- Lack of preparation – Two things to remember: a) take credible information regarding costs incurred to date (often the battleground at mediation is over legal costs and not the actual factual evidence or amount of damages); and b) always take a draft settlement agreement or Tomlin order with you (it will save time if a deal is reached).
- Lack of authority – Having full authority to settle is fundamental. Insurers (if involved) should attend if possible. Having a person on the end of a telephone line who is not privy to the dynamics of the mediation is an unnecessary hurdle.
- Stuck mindset – Mentally ‘turning the page’ to look at matters in a different light is often a key aspect of mediation. A good mediator will help the parties focus on the future.
- ‘Fishing expeditions’ – Using mediation as a fishing expedition for evidence not yet seen is only going to create mistrust. Agree informal directions for voluntary disclosure prior to the mediation.
- Client isolation – Clients should be encouraged to be actively involved in the process.
Lastly – be creative, positive, flexible and very well prepared!
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