The increase in take up of mediation in previously aggressively litigated civil and commercial cases has created an increasingly sophisticated set of tactics employed during the course of the average mediation.
Lawyers are aware that even though most cases settle at mediation, settlement is not a given and so aggressive litigation tactics are and need to be employed reflecting that litigation is still very much “in the room”. Further, each side generally learns something about the others’ case and that any risks and weaknesses that may be created during the mediation may need to be mitigated.
This means that now, more than ever, lawyers, trusted advisers and mediators have to work diligently together to ensure that the needs of the parties are met. Having said that, there are many potential stumbling blocks in the dynamics of this relationship that all professionals involved need to be mindful of to serve their clients to their best abilities.
The uncomfortable truth of mediation
Clearly, mediation gives the individuals in dispute, the opportunity to step out of the legal process and to find solutions that help them get back in control of the situation, the relationship and, crucially, the solution. This happens because the questions move away from
- Do I have a good case?
- Am I right?
- Will the other party get their just desserts?
- Will I get justice?
- What do I want not just from this process?
- What do I want for my life?
- What does my business need?
- What needs to happen in order for me to get what I want?
- What are my principles?
- What are my priorities?
The inevitable result of this shift is that suddenly, the structure and framework of the rights and wrongs of the law can suddenly appear and, in fact, become, secondary to the process and importantly, the result. It can also mean that points of principle that were previously worth fighting furiously over become secondary to a result that works.
This creates two challenges for advisers in particular in a case where issues are highly contested
- If and when to let-go of points of law and principle
- Ensuring that if the case does not settle at mediation, the other side does not consider that commitment to these principles and points of law has waned and/or they are not in a better position to expose the weaknesses of the case.
The result can often be that in the lead up or opening phases of the mediation that the litigators present their position and how they plan to exploit the other sides’ alleged misdemeanours or weaknesses aggressively. Tactics can include:
- Creating a very tight window for mediation to happen
- Not bringing a position statement and including numerous, previously un-particularised claims in the opening statement
- Threatening a significant escalation of the items claimed
- Allegations of bribery or criminal activity
- Threats of an early walk out
- Addressing the other sides’ client directly and challenging the advice of the other side’s lawyers
There is no doubt that these tactics can be useful to:
- Speed up the process – often a threat to leave can move parties to put first or indeed final offers on the table at an earlier stage
- Incentivise the other party to settle – the prospect of an escalation of the litigation will obviously have an impact on fees
- Demonstrate the weight of the case and the advisers’ commitment to it
- Undermine the authority of the lawyer’s advice and cause the client to doubt their own prospects of success
- Appeal directly to the better judgement of the client
So, the working relationship between the mediator and the adviser is crucial in order that the push and pull of a high stake mediation is managed most effectively. The mediators key role will not be to discern the rights, wrongs and potential merits in law but rather to work with the clients and their advisers to identify the strategic route for both parties to get as close to their goals as possible. For that to be the case, any good litigator will need to be satisfied that they can work with the mediator. It is always up to the mediator to build rapport with the lawyer and the client but if the lawyer has fundamental doubts about the mediator, it could jeopardise the mediation. It is helpful for the mediator and adviser to speak prior to the mediator being chosen and build rapport so that there are fewer surprises. In particular, litigators will need to
- be absolutely convinced that the mediator will adhere to the principles of confidentiality and impartiality
- be satisfied that the mediator is robust enough to ensure that none of the information that is entrusted to them is given away, even unintentionally, to the other side
- feel able to hand over control of the mediation process to the mediator: for example, to allow the mediator to discern the timing of opening offers.
- be prepared to make the mediator aware of any additional high stake claims they are about to introduce into the mix
As mediators, we are working increasingly with advisers to help them review and improve their performance in mediation. If you would like a team round table to improve effectiveness in mediation, or if you need a mediator, please call us TODAY on 0800 082 9993 or email us at firstname.lastname@example.org.