Posted: Friday, 4 January 2019 @ 13:43
What are the dangers of mediation and when should you not mediate?
People like me who mediate like to think of the virtues of mediating, but when does mediation not work?
Here are nine reasons not to mediate:
1 You need
injunctive remedy – When rapid protective action is required to protect
assets, evidence or reputation such as abuse of intellectual property
rights it is best not to mediate.
2 If you are
convinced that you will do better with Court. Court cases do fundamentally
involve a significant level of risk but if as a professional advisor you
are convinced that you will do better in Court, then you should avoid
mediation, subject to the rules of the Court and the costs involved.
3
If you are
searching for a legal precedent – For example a public judgement or an
important clause in an international franchise contract or a ground
breaking employment or inheritance case.
4
If you
have no confidence that the other party would honour the terms of the
agreement. In these circumstances your party’s best interests will be
served by going directly towards trial and a court judgment.
5 If you have a limitation
period – Formal legal proceedings need to be issued prior to expiry of
limitation period although parties can consider an agreement to extend the
period or an agreement to mediate in parallel with formal proceedings
6 If you or your
client(if you are a professional) really wants his or her day in Court (Though you may have to
explain your clients actions if the matter does go to Court).
7 The
Negotiator’s Dilemma – open dialogue may tempt the other side to greater
demands. This is a particular dilemma relating to mediation. Nevertheless
with the way that the Courts are operating it is increasingly not a sign
of weakness to propose mediation.
8 The other
side may be on a fishing expedition though the mediator can test this.
The other
side may get a particular idea on a line on enquiry for how to pursue a
case from a particular exchange that takes place in the case. Said against
that, the mediator should be able to control this line of conduct. In my
experience this only happens in a minority of cases.
9 If you think the other side ultimately is not going to settle. Some people are not motivated to settle.