Mediation: Last Chance For Control

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Mediation: Last Chance For Control

Published by laurence nicholson in Opinion · Thursday 28 Jul 2022
Tags: #mediation#adr#disputeresolution
Mediation: Your Last Chance To Exercise Control In A Settlement
(To listen to this as an audio podcast, click HERE)

For the large majority of us, disputes are never nice, and we’d generally prefer to avoid confrontation, dispute and argument, especially when it heads towards getting other parties involved, particularly legal professionals.

Once a dispute escalates to this point, the typical path is to ‘hunker down’ with our respective legal teams of solicitors and barristers, all of whom are giving their opinion on the validity and potential success of a claim in court, but always with a mind to generating fees for their respective organisations.

It is human nature, and all too easy, to find ourselves wrapped up in a false sense of security, relying on those most positive aspects of legal advice, and generally trying to ignore the negatives as ones which ‘won’t happen in my case’, and then confidently proceeding to spend significant amounts of time and money, on argument and positioning, and ultimately preparing for our ‘day in court’.

Whilst there are many problems with this approach, to my mind, and speaking from personal experience, the over-riding risk is the number of uncontrollable variables that surround the environment in which a decision will be made. A decision which at that point is outside of our control.

These variables include the capabilities of our legal team, the accuracy of their determination of the strength of our case, the due diligence afforded to relevant supporting, and countering, case law, the biases of every individual involved in the process, right up to the judge and the mood they are in on the day.

There are numerous others, but you get the picture. In addition to this, if you are fortunate enough to have all of those variables in your favour, that (not so) little concept of judicial policy-making, where interpretation is directed by considering which decision will impact the public (and in this also read ‘business’ owners) the most, and ruling against that outcome, can ultimately see us facing a lost case and significant penalties and cost awards.

What is far more ‘equitable’ in my view, is the process of mediated agreement, within which the parties are able to achieve a better understanding of the issues and position of the other party, and be as creative as necessary in finding a common outcome where the resulting agreement sees them both satisfied with neither ‘winning’ nor ‘losing’ in the eyes of a very narrowly focused results matrix, but leaving the mediation with an acceptable outcome, no further expensive time and money costs, and the knowledge of knowing their lives can now move forward without the cloud of litigation overhead.

The important thing here is that agreements can include as creative an outcome as one can dream up, so long as it is lawful. Once this point is passed, the decision and award outcome is taken away from the parties, and the options available to the courts is severely limited in terms of being a form of damages and/or specific performance type rulings (do something/stop doing something).

I would always recommend taking the mediation option, as the rate of finding a suitable agreement is around 90%, and even if that particular process fails, you know you tried, and you have a greater insight into the position and emotional drivers of the other party, as well as more awareness of your own.


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