First of all, Happy New Year.  The start of the year at Mason Hayes has been rather hectic as we have been instructed on several large matters simultaneously and there has certainly not been time to ease back in gently after the Christmas break.

Throughout my training contract I have been involved in many mediations and without prejudice meetings.  These have ranged from conducting telephone mediations with the Small Claims Mediation Service to assisting on mediations regarding multimillion pound disputes.

Just recently I had the opportunity to be involved in a tri-party mediation on a larger matter.  The parties were poles apart prior to the mediation but it was hoped that a commercial deal could be made on the day or, at the very least, the issues between the parties could be narrowed.  As a firm, we do not believe that matters cannot be settled simply because the parties have disagreed prior to the mediation.

Unfortunately, on this occasion, the matter did not settle on the day.  Whilst I obviously feel the frustration on behalf of the client, this does not mean that there were no positives to be taken from the day.  Often, a mediation gives you the opportunity to clarify certain issues and to understand the arguments that the other side will be making against you.  Sometimes certain smaller issues can be agreed upon and this at least carves out a path forward for a potential settlement.

In a mediation, the most important thing to remember is that you are there to try and cut a commercial deal and to prevent the parties from incurring further unnecessary legal costs.  It has been very interesting for me as a trainee to observe different mediations and see the differing tactics that opposing parties have used and whether they have come to fruition on the day.  I have witnessed differing approaches from people playing the innocent and wronged party to people taking an aggressive and robust stance.

The most important thing for your client to remember is that it is highly unlikely that either party is going to leave a mediation feeling that they got everything they wanted.  The process is about compromise and making sensible, reasonable offers.

Until next month,

Kimberley