Are you serious about settlement?

If you are, then it’s important to demonstrate it in your mediation team’s conduct both before and during the mediation.

Actions speak louder than words, especially in the intense arena of mediation. Think carefully about how your team’s behaviour might be interpreted by others. Imagine yourself in your opponent’s shoes and how you might respond to the kind of signals you are sending. Here are a few suggestions to help build a positive, collaborative environment:

  • Don’t be unnecessarily difficult in agreeing a mediator or venue. Don’t reject the other side’s suggested mediator just because they suggested it (“biased mediator” is an oxymoron – by definition they don’t exist). Be accommodating if good reasons are given for wishing to hold the mediation in a particular location.

  • Use neutral, moderate language in your position statement. Avoid emotive words like dishonest, theft, fraudulent, incompetent, hopeless, useless, bully, disreputable, disingenuous, etc. If these are aimed at individuals attending the mediation then you have significantly decreased the probability of settlement before the day starts.

  • If you are hosting the mediation, don’t put the visitors in a windowless, cramped room. Give them the best room available. And be hospitable with hot drinks and lunch.

  • Watch your body language in plenary session. No raised eyebrows, tuts, groans, sighs, feigned disinterest, phone fiddling or head shaking. Give the speaker the respect of your full attention with good eye contact, even if you profoundly disagree. You will have your chance to respond.

  • And finally, please make sure that the people that the other side would reasonably expect to be present are present. This often means both the decision maker (with proper authority) and the main protagonist. Consider this: an architect’s negligence claim brought by a householder following months of disruption resulting from a failed extension project allegedly due to defective design. Neither the architect nor his professional indemnity insurer are present at mediation; the only attendee is the lawyer appointed by the insurer.

    This happens all too often and seems to be a growing trend. The insurer’s absence may be due to time pressures. The architect’s absence may be the result of a (mistaken) belief that they have no role because their financial stake is limited. Or the absence of both may be a deliberate strategy. Whatever the reasons, it sends the worst possible message to the claimant: the architect doesn’t care and the insurer has more important things to do.

Needless to say, the above suggestions apply equally to disputants and lawyers alike.

Feel free to leave a comment!

Alistair Pye

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