Mediation provides the combination of efficiency and economy as a process and allows for the final resolution of a dispute. It is not only cheaper than adjudication and litigation, it is in fact quicker, and allows for a flexibility that the rigidity of adjudication and/or litigation cannot achieve. There is no right time to go to mediation, but the sooner the parties attempt this, the better.

Having an amicable mediation can help preserve the professional relationship between the parties and may even help retain the opportunity to continue working with each other.

Whilst the result of the mediation varies, depending upon the nature of the dispute and model of mediation applied, below are some common mistakes that you should avoid to secure an amicable settlement and/or successful mediation.

Try to avoid:

  1. Aggressive conduct - more heat less light. Treating it like an acrimonious divorce and being discourteous to everyone either purposely or inadvertently.
  2. Setting out red lines in advance and making arguments that whilst persuasive to a neutral party, do not interest the opposing party.
  3. Failing to engage with the other side's arguments and so failing to give their executive decision makers any basis for justifying a settlement.
  4. Imposing time limits during the day and wasting the upfront investment in the mediation.
  5. Holding back on issues that the opposing party seems to have ignored so as to ambush them later, thinking that may help to frustrate a settlement at the last stage.
  6. Refusing to agree in part where agreement may be possible. Especially in relation to quantum, keeping quantum undefined and uncertain.
  7. Failing to see it from the other side's point of view. Having the attitude of "who cares what they think".
  8. Failing to notice how the mediator reacts. The mediator is a neutral party, a characteristic that will be shared by the Judge/Arbitrator.
  9. Not answering the mediator's questions. He/she may be trying to help.
  10. Threatening to walk out and/or walking out, rather than agreeing the mediation is inconclusive.

How NOT to mediate was discussed in our webinar of 24 June 2021. To view the webinar and supporting notes click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.