How do you prepare for and ensure that a mediation has the most chance of success? When it comes to mediation, the measure of success depends on a wide range of factors. But, the methods of reaching a mutual and agreeable solution are often the same.
We have won national awards for our use of mediation. We have been using mediation as a method of dispute resolution for over 16 years. The dispute resolution team at Pannone Corporate know that mediation is a valuable and preferable form of dispute resolution for clients. Mediation is confidential, flexible, easy to arrange and a controlled environment. It is also much less expensive than a trial. While the following tips are by no means comprehensive, they are a good starting point and essential to consider prior to any mediation proceedings.
1) Timing is Critical
When it comes to mediation, timing can be key. Introducing mediation early into a situation can prevent further legal escalation, as well as helping to maintain relationships between parties. It can also help to avoid the legal fees, management time, reputational risk and other associated costs of going to trial. However mediating too early can be a mistake if the parties don’t understand enough about their own position or the opponent’s case. Again mediating very late on in a dispute, such as a few weeks before trial, can be a mistake as the parties are usually entrenched in their positions and significant costs have been incurred.
Additionally, if neither side has any expectation or intention of settling the case then mediation is not a good use of time or money.
A large part of successful negotiation derives from preparing your case. This sounds obvious but there is nothing that beats knowing your case, including any weaknesses, as part of mediation preparation. You want to work with your lawyers in the approach to a mediation to understand the likely approach of the mediator, the issues that will form the basis of the discussions, the difficult legal and commercial issues, parameters for settlement and, importantly, what is your plan if mediation fails. Do you have a plan B? You do not want to be trying to devise a plan B while sitting in the mediation at 6pm.
3) Devil’s Advocate
As part of the preparation for mediation, you must understand the strengths and weaknesses of the opposition’s argument and have answers to their strongest points if possible. Knowing the opponent’s position as well as you do your own case is vital. The opponent’s perception of its case will influence their approach to settlement. Put yourself in their shoes as part of your preparation. What will be their focus?
4) Don’t Be Afraid to Walk Away
Mediation has a good track record in settling disputes but it is not always successful. If it is apparent that the two positions being argued for are worlds apart, then you should feel confident to walk away from mediation at any point. Before doing so you must appreciate what your next step will be. Leaving a mediation when the other party is behaving unreasonably can be a cathartic step but you need to know what your plan B is. Sometimes it is useful to postpone or adjourn the mediation as this can give both sides a chance to consider further their positions following a period of reflection or taking further advice. A bad deal is not better than no deal in most cases.
The disputes team at Pannone Corporate have represented clients in hundreds of mediations across a wide range of disputes and sectors. We have long-standing relationships with some of the foremost mediators in the UK and we use our experience to suggest the most appropriate mediator for any particular dispute. For an obligation-free discussion of your circumstances, please call our expert team of dispute resolution solicitors on 0800 131 3355 or contact us via our enquiry form.
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