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. So for example, if you’ve suffered a loss of two month’s rent (£1,000) due to a broken lease, asking for £15,000 is not objective or reasonable.
One way to be objective is to list the actual costs associated with a loss. Using the above example, we can list out our costs as follows:
| Cost type | Amount of loss |
| Two month’s rent | £1,000 |
| Advertising (1 ½ months) | £200 |
| Clean-up (over deposit amount) | £300 |
| £1,500 |
In addition, there will be costs specific to each case that may be recoverable after a court trial (e.g., filing fees). Your solicitor can help you to determine these costs and add them to the losses you’ve sustained due to the breach of contract (or other type of claim). In our example above, let’s say that your solicitor determines that recoverable costs amount to another £500. Your total minimum recoverable loss comes to £2,000. Again, it is still not reasonable to demand £15,000 to settle the case.
Does this mean your case is only worth £2,000? Not exactly. Another thing that both sides consider – or should consider – when mediating a case is the future anticipated costs they will incur if they decide to proceed to trial. This can be significant for both sides, depending on the nature and complexity of the case involved. On top of that, the losing party may be required to pay towards the claimant’s costs. For a claimant, this could mean that instead of being awarded money, if you haven’t proven your case sufficiently, you could end up paying the defendant money out of your own pocket.
The possibility of additional costs and loss is something that each side must consider when entering into mediation. Mediation seeks to limit the cost to each side by reaching a satisfactory agreement between the parties before significant costs are incurred. By reaching an agreement in mediation, both parties avoid the risk and the costs associated with the possibility of losing the case.
Money and time are finite. Emotions are not. This is why it is of great value to work with an independent third party to help resolve the issues unemotionally.
In our next article, we will look at what to bring to mediation that will help you engage in a successful and fruitful process.
