Why mediation is a bad idea, and other myths

by David Semple

A mediator attempts to dispel some popular misconceptions surrounding the process

The Journal, January 2006, page 24

Myths grow in the telling and those surrounding mediation are no exception. As with all myths, the reality is often quite different.

MYTH No 1: Mediation is suitable for every dispute

Mediation is definitely not suitable for every case. The question becomes: what cases are suitable for mediation?

Experience of the law and mediation shows that some disputes have particular features which indicate that mediation would help to resolve them effectively, such as when:

personal reputations are at stake;
the parties wish to avoid publicity;
there is a need for the dispute to be addressed as early as possible;
there is high emotion that would benefit from a controlled outlet;
the parties would prefer not to go through the court process;
the parties are likely to have a continuing relationship;
court-ordered remedies would not be enough to resolve the dispute.

There are also cases which are unlikely to be resolved by mediation – where:

one of the parties is not willing, under any circumstances, to discuss the issue in front of anyone but a judge – this includes someone who may be termed a vexatious litigant;
one of the parties requires to establish a point of law – such as the enforceability of a restrictive clause in a series of contracts;
the pursuer wishes to make a public example of the defender;
a court order is necessary, such as interdict.

Mediation is, simply, an additional and valuable option for advisers to use appropriately to help individual clients, businesses and organisations to resolve their disputes.

MYTH No 2: The only reason lawyers don’t like mediation is they think their fee will be smaller

When lawyers are asked why cases are not suitable for mediation, they often raise concerns, such as:

“but the time is not right”; “the case contains difficult areas of law”; “emotions are running too high to mediate”; “the issues are highly technical and complicated”; “my client wishes to have his/her day in court”; or “suggesting mediation will display weakness”.

Such concerns are understandable, but often misplaced.

Experienced mediators are well used to helping parties in such cases to come to a satisfactory conclusion. (That is, a conclusion with which both or all parties are sufficiently satisfied that they voluntarily sign a binding settlement agreement at the end of the mediation.)

It may also be objected: “My adversary may abuse the process and use it to find out how strong my case is. This may prejudice my case in any subsequent hearing if mediation does not result in settlement.”

Most situations can be exploited and abused. Mediation is little different. The comfort about mediation is that if you suspect this is happening, you are free to walk away at any stage with no penalty. In practice this arises very rarely.

Lawyers are not excluded from mediation. Indeed their presence at all stages is invariably helpful. There is no reason why you should be remunerated less well for preparing for and representing your client at a mediation than in court or tribunal – indeed, if client satisfaction is a factor in the ultimate fee, you may be better remunerated for advising this route, and more likely to find yourself recommended to others.

MYTH No 3: Mediation will work at any time

Timing is important. If mediation is suggested to the client at the wrong moment, it may be consigned to the bucket for good. Cases have a “rhythm” which most solicitors will recognise and there are times when the suggestion will be better received. Take a simple example:

The client arrives in your office with a grievance following a grave and recent disappointment with the other party. The client may be looking for blood. This is not the time to suggest mediation. After some investigation, initial letters are exchanged, possibly an action raised, an initial bill submitted and court dues paid – and you begin to gain a better idea about the other party’s stance. By now the temperature may have cooled. Some points have cropped up which were not apparent at the outset. Further questioning of your client reveals that some of the evidence may not be as robust as had at first been represented. The client has now had a taste of the likely costs, and is recognising that a case in court may last years rather than months, face previously unappreciated procedural hurdles, and cost considerably more money and management effort than anticipated. The reality that a positive judgment cannot be guaranteed is beginning to sink in. At this point a suggestion of mediation may be better received.

You are better placed than anyone to recognise the ebbs and flows of a case and how they may influence your client’s attitude. That recognition will help you identify the appropriate time to introduce the possibility of mediation.

MYTH No 4: Only compulsory mediation really works

Statistics and experience in other jurisdictions illustrate that the more willing the parties are to discuss their disputes with a trained mediator, the higher the success rates. When they are cajoled into mediation against their informed will, the lower are the chances of success. Willingness to go to mediation need not be enthusiastic! Provided the parties are prepared, willingly, to talk in presence of a mediator (whether because they wish to, or want to avoid unpalatable alternatives), a mediation will have a better than 75% chance of success.

It is now being suggested that there may be a professional duty on solicitors to mention mediation to their clients, as a possible option, prior to raising litigation. This widens the client’s options and will be most effective if you are able to explain clearly how mediation can help.

The new Rules in the Commercial Court of the Court of Session appear to require a good exchange of information and clear and full discussions to have taken place before court action is begun. Alternative dispute resolution is mentioned, and mediation can play a part in clarifying issues – even if disputed areas of law are left to be dealt with by the court. This aspect of the rules is clearly not mandatory but for guidance, and indicates a welcome recognition by the Court of Session of the mediation process.

MYTH No 5: Mediation settlements ignore the law

Almost all disputes you handle will be determined against the backcloth of legal rights and obligations. In reality, however, in how many cases is the key determinant factor a difficult point of law? That more than 95% of cases settle before proof (often at the last minute) suggests that there are considerations which affect the outcome more than the pure law does. These tend to be the ones which matter more to your client – getting the matter out of the way; costs; delays; the loss of control; the sheer time taken up, which could be better used; and the overall effect on their business.

In the run-up to and in the course of a mediation, you will have plenty of opportunity to make clear to the other side the strength of your case at law. This is rarely ignored in the ultimate settlement (and would not be in a mediation). It may, however, not be the most significant issue. Mediation allows clients the opportunity, with your advice, to prioritise between their life/business needs and their legal rights and obligations.

MYTH No 6: Mediation meetings often become unstructured shouting matches

The opportunity for parties to express emotions directly to an “adversary” is one of the strengths of mediation – often providing the space for a breakthrough in negotiations. It is remarkable how the parties blowing off steam can get their yesterdays behind them, enabling them to think straight about what is to happen next. Family mediation has a good track record of successful outcomes, yet disputes involving more emotional circumstances are hard to imagine.

Pre-mediation meetings with solicitor and client are helpful in agreeing how the circumstances for a calm atmosphere can be created. A well run mediation involving a trained, neutral, empathic mediator with no interest in the outcome of the dispute, who creates an atmosphere in which emotions become constructive not destructive, often provides the key ingredient to successful negotiation.

MYTH No 7: Mediation is only useful for straightforward cases

There is, now, extensive experience of successful mediations of multi-million and multi-party disputes.

Any solicitor who has run a case which involved files many inches – or feet – deep, knows that this is where costs for the clients rocket and delays abound. Clients also know this. Very often client and lawyer alike wonder how on earth to get the client out of the apparently bottomless bucket of resources of manpower and cash required to see it through. It becomes like a game of poker. Who will fold first? This does not mean that the factual (any less than the legal) minutiae are jettisoned. It does mean that they assume different proportions in the parties’ minds as they consider what they truly need out of the situation.

Although it is important that the parties and their advisers have a good grasp of the relevant facts and law, mediation allows the parties – even in large cases – to set their own priorities between commercial and legal issues. This rarely requires a full evaluation of every last detail.

MYTH No 8: Mediation deprives the client of the “day in court”

If emotions are running high and the issues are complex, often it is felt that the parties are keen on having their day – perhaps not realising what this entails. It will rarely include letting off steam unless the judge is particularly indulgent. It is unlikely to permit a free ranging description of the background to the dispute (this will be set down in the pleadings). It will be very formal. It will be completely controlled by the system. For most litigants it will be intimidating. Mediation, by contrast, is felt by many to be a satisfying experience. They themselves have the chance to say what they wish – in the way they wish to say it and in an unthreatening atmosphere. They feel they have been truly listened to. In other words their day in mediation has been much more satisfying than their day in court.

The reality of experience

The great bulk of lawyers and their clients who have been involved in mediation have been impressed with the process and the results. More solicitors are suggesting mediation to their clients. Such a suggestion, and the chance to do the client a considerable service, is likely to fall on deaf ears if careful attention is not given to the stage the case has reached. Successful timing may result in a mediation which could achieve a remarkable result for your client. The risks of failing to settle are low and the chances of settling statistically high. The way to dispel myths is to experience the reality for yourself.

David Semple was in legal practice for over 35 years and was chairman of Semple Fraser WS. He is a mediator and a director of Catalyst Mediation, Glasgow,

t: 0844 800 0206; e: david@catalystmediation.co.uk; w: www.catalystmediation.co.uk