To the Representatives

I say “Take off your adversarial and litigious hat. It does not help a settlement to insist your case is better than the other side’s.”

 Mediation is more than the strength or value of the claims and litigation is always uncertain.  Mediation is not only about the strength of the claim but pragmatic matters such as uncertainty, costs, time, anxious and/or reluctant witnesses. Both parties usually know they are right and this is unlikely to change during mediation.

The ACAS report on conflict (May 2021) is startling – in total, the cost of conflict to UK organisations was £28.5 billion – the equivalent of more than £1,000 for each employee. 

ACAS’s conclusion is not new. Early intervention in conflict saves money, time and promotes better wellbeing.

To All Parties Involved

 Avoid threats – of any sort. Each party knows its vulnerabilities; costs, publicity, reputation. In my view, threats are more a sign of desperation so weakness 


 Tips for a Successful Mediation 

  • Avoid derisory offers at the outset: they are likely to be mirrored, taking more time

  • Who goes first: it doesn’t matter – probably the most ‘grown up’

  • Bidding against yourself. It’s irritating but should not be a deadlock issue

  • Always think outside the box for imaginative solutions

  • Stay the day. So often parties bridge the gap after lunch

  • Taking time sometimes breaks a deadlock – or splitting the difference

  • Consider a figure (hypothetical) from which a party would not walk away

  • Remember the downside of litigation: uncertainty, time, stress, costs, possible publicity (eg public register of tribunal judgments)

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