By Richard Thomas, Partner
It is no secret that mediations enjoy a very high success rate, and this is certainly our experience here at IDR Law. This accords with the 2023 Tenth CEDR Mediation Audit, which reported an overall success rate for civil and commercial mediations in the UK at 92%. With this in mind, what can we learn about the 8% of mediations which do not result in any form of settlement, either on the day or shortly after?
The obvious starting point is that each case is unique and there can be any number of personal, legal, emotional, logistical or circumstantial reasons why a particular set of parties fail to reach agreement. However, based on our experience we have tried to collate three of the more common reasons, with the hope that in understanding these, parties embroiled in inheritance disputes can have an even higher chance of success in mediations than they do already.
- Sudden changes to a case on the day or ‘ambushing’
It is tough enough on parties in working with the mediator and their legal representative, thinking of all the ramifications of failing to reach agreement, and understanding and then making concessions, and this is where each party’s case is well-known. Now imagine how much harder this is if one party suddenly changes their case or introduces significant new evidence on the day. At the very least, it can set the parties back several hours in having to re-evaluate new legal and commercial risks, but it can also lead to the ‘ambushed’ party losing trust and faith in the other party’s motivations. More fundamentally, the gap between the parties can sometimes expand dramatically, which can move the zone of potential agreement in an entirely unforeseen direction which the parties simply were not prepared for. As ever, preparation is everything and whilst it may seem like ambushing the other party on the day will lead to a better deal, it is more likely to risk the mediation collapsing.
- Parties not being fully apprised of the risks and/or the strengths and weaknesses of their case
The mediator is not a judge and should not provide personal opinions or legal advice concerning the strengths and weaknesses of a particular party’s case; they are a proactive facilitator not an advisor. However, as the mediation progresses the mediator will often need to confidentially stress-test and explore a given party’s position or approach. This is made much easier if the mediator is covering ground which a party’s legal representative has already covered, and where, as a consequence, the party’s legal advisor may in fact assist the mediator in this regard. It is far harder if the party in question learns about costs consequences, for example, for the first time from the mediator. This can lead to parties losing trust in the mediator and feeling like he or she is taking sides; losing trust in their own legal advisor for not having had those difficult conversations earlier; and delay in having to process consequences or potential outcomes they may not have considered previously. Again, preparation is key, and this includes parties having a solid grasp of their case.
- Timing
One often hears solicitors talking about ‘ticking the mediation box’ and that mediation only needs to be attempted once for a party to achieve the associated costs protection at trial. Whilst the general principle of this is true, there are no restrictions on how many mediations can be attempted if the same would be worthwhile. In reality, however, for most parties they will often have one shot at making it work; usually for costs reasons if nothing else. With this in mind, it is important that due consideration is given to the timing of a mediation. If it is too early, then sometimes not enough is known about each party’s case or the available evidence for a mediation to be effective, and attempts at reaching settlement requires too much of the parties in having to make sweeping assumptions and theoretical guesses based on very little. Psychologically, the parties may also be too early in the process as a whole to feel the need or urge to reach an agreement. If a mediation occurs too late, then costs can sometimes become a barrier to settlement, along with the parties being too entrenched with little to no goodwill remaining. In these cases, parties can sometimes feel that they have gone too far and endured too much not to go all the way, where the concessions demanded on both sides feel too great. This can be particularly pressing in cases where the estate is modest and the legal fees high. Neither of the above circumstances need to be fatal to a mediation, but they can certainly increase the challenge for the mediator, and test both he or she and the parties.
As a mediator, fuelled by my continuing experience in acting for clients as a lawyer, my goal is to provide all parties attending mediation with the best chance possible to resolve their dispute on the day. This starts with the right preparation, where I will always be available before a mediation to assist parties in preparing for the mediation, and where part of the mediation process will involve a pre-mediation call with each party and their respective legal advisor (amongst other things, in a bid to try to avoid some of the above issues). During the day, my focus will be on listening, exploring and being the most proactive and focused facilitator possible. Whether parties reach settlement is entirely a matter for them, but at the very least they ought to leave a mediation with no regrets.