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Mediation: Common Mistakes & Trends

Common mistakes made by the relevant stakeholders involved in mediation can lessen the chances of reaching what can be deemed a reasonable settlement between the parties.

This article is the third in a series looking at the mediation process and focuses on common mistakes made and the general trends of mediation.

Our first article provided an overview of the mediation process and the relevant CEDR Audit which is referred to in this article. Our second article looked at mediation during the COVID-19 period.

The most common mistakes made in anticipation of or during the mediation itself:

 

Failure to Prepare/Understand Your Case

As well as understanding the strengths of your case, it is equally important to know and understand the weaknesses. Are there any arguments that you can put forward to counter the weaknesses in your case?

The Mediator may ask you what your BATNA position is. This stands for Best Alternative To Negotiated Agreement. In other words, what will you do if you cannot reach a settlement at the mediation?

Connected to this will be the issue of costs if you have instructed professionals to help you. What is your current level of professional costs? What will be the level of your professional costs if the dispute proceeds?

Failure to consider/prepare for the above prior to mediation could result in a settlement less than what could have been achieved or no settlement at all.

 

Resistance to Joint Conferences

A joint conference is a meeting that takes place at any stage of the mediation. One or more representatives of each party are present at the joint conference, generally with the mediator. A notable comment by a mediator in the CEDR Audit states as follows:

“There is a greater resistance to joint conferences which makes the whole process much less likely to be successful.”

 

Lack of Pre-Mediation Contact

The CEDR Audit states that mediators have highlighted the benefits of increased pre-mediation contact with lawyers and parties involved in mediation, particularly for online mediation. Failure to sufficiently liaise with the relevant parties prior to mediation can impact the value of the mediation itself.

 

Lack of Patience

Mediations can be drawn out and sometimes can go on until past midnight. Whilst the day itself can be particularly stressful and tiring, impatience on the day may lead to a lack of settlement and ultimately wasted time/costs.

As with any commercial dispute, the key is to get professional, specialist legal advice as soon as the issue/dispute occurs.

 

For more information or advice on mediation or any other commercial dispute, please contact Gordon Monaghan or Harry Georgiou directly. Alternativly you can call us on 0115 9 100 200 or click here to send an email

Posted on July 9, 2021

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