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Sometimes the most obvious questions are the ones that go unanswered. These include:

  • Should we go to mediation?
  • What are good conditions for mediation?
  • What factors should be taken into account?

Having considered the question at length during the course of mediations and in discussions with lawyers, this article goes to highlighting some common situations where mediation has been the right choice.

The relationship between individuals has broken down beyond repair

 

This is often cited as a reason not to mediate as parties can’t conceive that their differences can be resolved through agreement and certainly not through coming together.

However, in practice it is generally the disputes that have the most complex interpersonal factors have the best chance of win-win at mediation. This is partly because mediation is a flexible process that allows for the full scope of issues at play to be addressed discreetly and confrontationally can be addressed in a way that opens up the negotiations and put the individuals back in charge of the negotiation and the conversation.

Commercial risks and realities need careful management

 

Often when people come to mediation, businesses can be at a make or break stage. Confidentiality can be a high priority and parties may be very sensitive to what may be given away.

 

However, at the same time, the commercial realities are often what can make or break the success of the resolution. If, for example, a claim is being brought on the basis of misconceptions about the success of a business and therefore its ability to provide compensation this reality check will be key to future decision making for all the parties. Equally the existence of litigation and its risks can compromise the development of the business and lead to commercial decisions being made on the basis of the dispute in question rather than commercial realities and opportunities.

Risk of negative impact on personal and professional well-being

Disputes and litigation take up a great deal of time and headspace for the individuals involved. They can very quickly and very easily be all consuming and become the thing that keeps people up at night. The risks to the well being of the individual and the organis

ation can then become very serious.  The mediation process allows for a healthy decision making process that can take into account the individuals as well as the principles involved.

Risk of costs outweighing benefits

 

This sounds obvious but I make the point because it is so easy for costs to escalate and so difficult to anticipate them. Many times, parties come to mediation having considered it on advice at the early stages but decided not to proceed. It is important to note that there are many factors involved in fighting a claim and it can make sense to pursue it notwithstanding costs.  Equally, however, the result of a protracted dispute can often be that fees can risk exceed the value of the claim with limited additional commercial or personal benefit.