WHY DO COMMERCIAL MEDIATIONS FAIL?

A leading global conflict resolution consultancy has published its latest  audit into the state of commercial mediation in the UK. The report, by CEDR (the Centre for Effective Dispute Resolution) suggests that while the success rate of mediation remains steady, fewer mediations settle on the day of mediation. Overall mediators resolve fewer disputes on the day, and when disputes are settled at mediation they take longer to resolve.

HOW DO I SUCCEED IN MEDIATION?

Mediation is a proven, effective dispute resolution method. But both sides must approach it with the right attitude. In our experience an unrealistic expectation of an ‘easy win’ reduces the chances of success considerably. Here are some ways to increase the probability of a successful mediation:

Adopt a constructive attitude  – One reason why businesses choose mediation over court is that they retain control of the dispute. And they have the opportunity to agree the outcome instead of handing responsibility for the decision to a judge. But to take advantage of mediation and all its benefits you need to commit to the process. Too often one side comes to mediation because it feels coerced into doing so. A court may have warned of negative cost implications if there is no attempt at mediation or some other form of alternative dispute resolution. If there is a cynicism or fundamental lack of belief in the process it has little chance of success.

Don’t mediate too soon – Sometimes early attempts at mediation fail because there is not enough information on the table to enable settlement.

Spend time on strategy – Mediation may be less formal than court. You might not be bound by so many rules and procedures. But the inherent flexibility in the mediation process does not mean you should turn up unprepared:

·      You should be sure of your legal position

·      Ensure your team has agreed what, if any, points you are prepared to concede on

·      Be able to defend the positions you are taking on certain points

·      Have arguments ready to persuade the other side of the reasonableness of any offer you are prepared to make or stand you are taking.

Get the right mediator – The choice of mediator is crucial. He or she must be impartial so even if the other side suggests a particular mediator, don’t immediately reject the choice without good reason. Check the qualifications and experience of the proposed mediator to see if they are likely to be effective in your case. Are they familiar with the subject matter of the dispute? How often do they perform mediations? Examine their track record of success. How do you think someone with their personality will interact with your team and with the other party in the mediation?

TURNING FAILURE AROUND

Even when mediation fails initially, the exercise can often turn out to be a stepping stone to a successful resolution of the dispute. A mediator’s attitude to the negotiations can concentrate thinking about what a judge might decide if the  case ends up in court. This, together with the more detailed understanding of each side’s position (gained during mediation discussions) can encourage an out- of-court settlement.

At Nath Solicitors in London we use a range of methods to help clients find solutions to commercial disputes. This includes mediation. As the CEDR report makes clear, mediation as a form of dispute resolution is here to stay. In the last year alone this form of dispute resolution was used in commercial claims worth £10.5 billion.

If you are involved in a commercial dispute and want to find out how mediation might work contact Commercial Disputes Resolution Lawyers at Nath Solicitors or Call us on +44 203 670 5540 or +44 (0) 7545 813 894 or contact us online.