When considering the options available to a client in a dispute between a client and a third party, a Solicitor should always discuss whether Mediation or some other Alternative Dispute Resolution (ADR) procedure may be more appropriate than litigation, arbitration or other formal processes.
Although the Court of Appeal concluded that the Court has no jurisdiction to force the parties to mediate, relying on Article 6 of the European Convention on Human Rights, in the case of Halsey v Milton Keynes General NHS Trust , the Court considered whether a refusal to Mediate should give rise to costs sanctions.
The Court noted that any decision to deprive a successful party of any of its costs (on the grounds that it refused to agree to Mediate) is an exception to the usual rule that costs follow the event ie the unsuccessful party pays. Accordingly, the burden to justify a costs sanction lies with the unsuccessful party. The unsuccessful party must show that the successful party acted unreasonably in refusing to mediate.
But whatever the Courts say, it makes sense to seriously consider Mediation as a way to resolve a dispute. It is usually cheaper than Court, it allows the party a measure of control over the process, it avoids setting “precedents” by having binding Court decisions, and it keeps high profile disputes out of the media.
But how do you ensure that a Mediation is not wasted and maximise the prospects of settling your dispute there and then?
- Choice of Mediator
You want to choose an effective Mediator with a good track record. They should exude trustworthiness and confidence. They should be flexible as the process must be moulded to the parties’ requirements and the manner in which the Mediation develops.
Several factors determine the occurrence of the Mediation in the timeline of the dispute. Do you have enough information/facts to make informed decisions? Are the parties mentally ready to settle? And are the costs at a level that can be swallowed by either or both parties before they escalate exponentially?
Make sure the right people attend the Mediation. As well as ensuring that a senior decision maker is in attendance, it makes sense to also have a person there who knows all the relevant facts. A legal advisor should also attend to guide the party through the process and ensure a binding agreement is signed up to at the end.
- Making Offers
The timing of offers is important. Some parties “play the game” and don’t make offers until mid to late afternoon of an all-day Mediation. A good Mediator should encourage parties to bite the bullet early and ensure that time is not wasted. Extremely low opening offers by a Defendant or extremely high opening offers from Claimants should be avoided. It just polarised the parties from the start. It is advisable to justify the offer being made.
The parties, their representatives and the Mediator should all demonstrate flexibility, patience and a willingness to persevere. Many Mediations tip over into a settlement when least expected, after many hours of stalemate.
Make sure that before all the parties rush off home, no doubt exhausted, that the settlement reached is recorded in a concise, comprehensive, binding Agreement.
To speak to one of our expert mediation lawyers contact 0161 969 3131.
Author: Helen Brown