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Should You Mediate With The Other Side?

Posted: Friday, 11 March 2022 @ 11:39

Sometimes on Court cases that I deal with, the other side(normally solicitors if they are represented) will propose mediation.

The question arises -  Should you accept the offer of mediation?

As a qualified mediator and lawyer I am in favour of using mediation as a tool to try to solve problems and save the cost and stress of litigation?

However, there are some notes of caution.

Some points to consider.....

1 Why is the other side proposing mediation? Currently I am working on a case where the other side's solicitors are proposing mediation, but I am cautious in advising my client to go along with it. Why? Because in this instance, I believe the reason why mediation is being proposed is down solely to the other side's solicitors desire to settle the case. However, I do not believe their client is on board for mediation in that I am not confident the opposing party will take a reasonable position in the mediation. I (and indeed my client) have formed the view that a mediation will be a pointless exercise for this set of circumstances.

2 The Cost. Mediation is not a cheap exercise. You need to pay the costs of the mediator, venue, lawyers preparation time and lawyer attendance time. Factor this in prior to attending mediation.

3 The Timing. Sometimes it may be a good idea but the timing does not work. Due to the complexity of the issues you are facing (say emotional and/or due to lack of disclosure and/or or lack of understanding on technical issues) it may simply be premature to mediate. The key can be patience and the ability to strike when it is the right time.   

Nevertheless with a good mediator mediation is an effective way to solve disputes with a good track record of reaching solutions. It is certainly something to keep in mind. You just need to stay real as to whether it will work.