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Seven reasons not to Mediate by Alan Langleben

Despite strong words from Judges at all levels in the English judicial system, and despite the recorded success rate of mediations remaining steady between 70% and 80%, the number of mediations taking place (excluding pro bono and small claims matters) has remained remarkably constant over the last several years.

Here are some of the reasons put forward by clients for resisting the suggestion of mediation that I have experienced over the years and my attempts to respond.

1. If the matter goes to Court at least we will have finality. There will be a judgment and the case will be over. Going to mediation may or may not result in a settlement, we have no way of knowing.

Comment – The decision of the Judge at first instance may be subject to appeal to the Court of Appeal or even to the House of Lords, so finality may not be achieved for a considerable period of time. Also the decision of the Judge, if it is final, may not be to your liking, where as in a mediation you have the choice whether to accept a proposed settlement or not. Mediation should not be seen as an alternative to litigation but as one of the weapons available in resolving disputes and may be part of the litigation process.

2. It is going to cost a lot of money. In addition to paying our share of the Mediator’s fee we have to pay solicitors’ costs (and possibly also Counsel and/or expert’s costs) of attending a full day at a mediation. If we go to Court we would probably incur a similar cost but at least the case will have been decided.

Comment – The proportionality of costs is a fundamental aspect of dispute resolution whether by mediation, litigation, arbitration or otherwise. There is an argument that by investing a significant amount of money in trying to reach a settlement through mediation both parties are in a sense buying into the process and will not want it to fail and therefore waste the money. Alternatively, the costs will not have been wasted anyway because work done in preparation for the mediation will correspond to work done in preparation for the trial and it is likely that a great deal of information will be gleaned during the course of a mediation which may well narrow the issues and clarify the points to be resolved by the Judge.

3. If I offer to mediate or accept an offer to mediate this will show that I am weak. I believe I have a very strong case and want to have it resolved in Court.

Comment – If you have a very strong case this will emerge and be made clear during the course of a mediation process. The other side will have a chance of testing it, commenting on it and having an impartial view of it through the Mediator. This may well help to resolve matters without actually having to go to Court. Furthermore, although you are sure that you have a very strong case, matters may arise during the mediation which could cause you to see things in a different way.

4. I do not trust my opponent, they will tell lies at the mediation and they may well con the Mediator into believing what they say is true.

Comment – This s undoubtedly one of the arguments that carry some weight in relation to mediation. In Court evidence that is given is tested in cross-examination. In a mediation parties talk to the Mediator in confidence so you may not even know exactly what they are saying and have no way of testing it or challenging it. However, an experienced Mediator will be very much aware of this and if there really is dishonesty on one side (or both) then the mediation will be aborted so that both parties will have wasted the time and money involved in the mediation process. In my experience this does not often happen but it cannot be ruled out.

5. I do not believe my opponents are entering into mediation in good faith. They are using their financial strength to cause me to waste time and money and effort which could more properly and beneficially be used in preparing for trial. There is no chance of a settlement, they are going through the motions because they can afford to spend the money and I cannot.

Comment – This is another valid point. There is a danger in unreasonably refusing to mediate in that there could be a costs sanction at the end of the day. If mediation is to be refused a very carefully worded letter explaining the reasons why will have to be sent. If you are absolutely convinced that your opponent could not possibly be in good faith, then I would agree that there is little point in going ahead with a mediation. Perhaps at an early stage a without prejudice telephone conversation between solicitors might help to clear the air.

6. I am worried that the mediation process, the influence of the Mediator, and the expectations will put pressure on me to agree to a settlement at rather less favourable terms than I really should be looking for.

Comment – The decision whether to agree to a settlement or not is always that of the client. By having a legal representative present you have the advantage of an advisor who can stand apart from the issues to some extent and look at it coldly and dispassionately. If pressure is being put on you to settle at an unsuitable figure then you should resist. The important point is to make a decision to settle or to litigate based on as much information as possible and having weighed up all of the options.

7. I really want to have my day in Court. I want to tell my opponent exactly what I think of him and I want the Judge and the Court to hear what happened.

Comment – This is very often said. The mediation process is confidential and you will not have the opportunity therefore of the light of publicity shining on the dark deeds of your opponent, but that also applies to any possible weaknesses in your own case. The mediation process includes a joint meeting where you can speak across the table to your opponent face to face. The Mediator may also suggest during the course of a mediation a conversation between you and your opponent, usually with the Mediator present. You can also tell the Mediator in your own words exactly what you want to say and ask him/her to convey those words to your opponent so that your opponent will be in no doubt whatsoever as to what you are saying and how you are putting your case. Furthermore, in Court you will be constrained in giving evidence by the rules of evidence and your opponent’s barrister will be there to restrict and/or confuse the evidence that you are trying to give. In a mediation you can speak freely, openly and honestly without any restrictions at all, say exactly what you want without worrying about hearsay or other rules of evidence. The Mediator will listen to you, and if you are speaking directly to your opponent, so will he or she.

CONCLUSION

I firmly believe that mediation should be regarded as a tool and as part of the overall process of resolving disputes even if ultimately they go to a full hearing in Court. In my experience those mediations which do not result in a settlement on or immediately after the mediation do pave the way for an ultimate settlement or a narrowing of the issues and a more straightforward, less expensive and more predictable case being dealt with in Court. Also if the mediation “fails” it should have educated both parties as to the strengths and weaknesses of their case, enabled them to consider what evidence they have not yet obtained and that they need to obtain before the hearing and in a sense gives a dry-run of the case facilitated by an experienced and professional Mediator.

Alan Langleben is a Mediator, on the panel of approved Mediators of the Property Litigation Association, and a Litigation Partner at Rochman Landau Solicitors, London W1.