there are times when cases simply can’t, don’t or won’t settle. Either the issues are too complex and disputed, or one side or the other simply isn’t willing to budge. Sometimes unfortunately, one side chooses not to engage or seek a settlement just for “sport”.
Sometimes, solicitors or participants hold back information from opposing counsel (and the mediator), thinking they hold back their ace until the last minute. Often, this backfires and involves more time and money being spent. Withholding important case information and evidence is seldom advisable.
Many people entering into their first mediation often wonder what they need to bring. The role of the mediator is to help the participants find a solution they can both live with. To do this, the mediator needs to know everything relevant.
Emotion is the downfall of many disputes. One side feels they deserve it all and the other side feels they should give nothing. This is a destructive emotional response that impedes a satisfactory settlement. When evaluating your case, it is important to try and put emotion aside and look at things clearly. A judge hearing your case will have to look at the case objectively and neutrally under the law.
The first topic I would like to address is the position statement that the participants or their solicitors prepare and send to the mediator well before the mediation meeting. This will usually contain materials and a case summary to allow the mediator to get familiar with the facts (and opinions) of the case.
When trying to select the right mediator for your dispute, it can be difficult to decide. What should you look for? How can you determine the mediator’s reputation and history of success? Often, a good mediation result lies in the personal qualities of the mediator.
Mediators are experts in many things: listening, easing tensions, reconciliation, and communication. The mediator must be a paragon of objectivity and impartiality. While he or she may ultimately have an opinion with regard to the merits of each side’s case, the mediator must approach those opinions with the utmost objectivity and recognise that both sides of the matter have merit for the individuals involved.
Once all parties agree to mediate, choose a mediator and schedule the date, the question then arises: “What will happen on the day of mediation”? Unlike a trial, mediation is an informal process that takes place at a neutral site, often the mediator’s office suite.
Although mediation has been available to litigants in the UK for decades, it has seen a rise in popularity in the last 18 months. Part of the reason for this has been due to the recession and the need to save money and time. But the reasons for its popularity go much further.
