Mediation – some things it may be worth bearing in mind

As a mediator and someone who advocates for clients at mediation (two separate roles), it can be interesting (and I hope helpful) to think about some of the things that can make a difference between a mediation settling and not. In my view, some potentially useful insights include:

• Sometimes a little give by a client, even when it is frustrating for them and even for instructing solicitors, is critical in achieving a settlement. It is important to think about the gain that can be made from a settlement overall, and whether a little irritation on conceding on a point that may be frustrating (and which you may want to win on) can be made up for by achieving a satisfactory overall settlement.

• Sometimes, even in cases you consider you are likely to win (and even if you consider you have a well-pitched settlement offer in place and the other side does not) the costs of preparing for and attending trial, allied with litigation risk (which I don’t consider can ever be eliminated entirely in litigation – the clue is in the name) can make settlement the better option.

• A part of litigation risk which may not always be considered is that events can happen in the runup to trial and in the lifecycle of a case which one was not expecting – and these events can occur in life away from the dispute and/or in relation to the dispute itself – which may challenge or even change previously held assumptions about what the “right” settlement might be. It is another factor in why via a full and final settlement one can achieve more certainty than by going on to trial.

• Mental clarity and headspace – I think it can be helpful and important to bear in mind that there is real value to a good portion of this “returning” at the end of/settlement of a case. I think sometimes people do not realise how much of their headspace is being taken up by a case, and how much emotion they are expending on it, until they are out of that case and not dealing with its ins and outs on an almost daily basis.

If you have any queries about mediation or are interested in instructing a mediator (or an advocate for a mediation) please contact our Liam Owen, an ADR Group-accredited mediator currently on the ADR Group Panel, on lowen@keelys.co.uk or on 01543 420043.