Poor mediation strategy

‘In order to try to obtain further insights into the challenges that mediators encounter when working with parties and their advisers, we asked about the frequency with which they encountered particular behaviours within client negotiation teams. … This year, the need for more thorough preparation was far and away the most common piece of advice offered. In addition, a number of respondents highlighted the importance of remembering that negotiation in mediation is a process of persuasion. One mediator recommended parties to “think about what you can say or do that will help the other party walk towards you” whilst another made essentially the same point more colourfully: “You are trying to persuade the other side to say yes, not batter them down. No one likes to agree with someone who is punching them in the face. Therefore, you need to think beforehand and during the mediation about how you are going to encourage the other side to say yes and think from their perspective as to what they need, not yours”.’ See: CEDR 9TH Mediation Audit (2021): https://lnkd.in/ewu_s4mv

Mediation works best, where instead of rehearsing their case, participants invest in the process by preparing ‘to do a deal’ instead of going to war by developing a ‘settlement strategy’. Therefore, sufficiently in advance of the mediation, each participant needs to think about:
● The potential settlement zone.
● The known or estimated gap between what each participant wants.
● Their ‘BATNA’ (best alternative to a negotiated agreement, i.e. going to trial).
● How to close the gap and come away with a win/win solution compared to the costs and risks of litigation and proceeding to trial.

A good Mediation Strategy has realistic objectives. Therefore, where a party’s evaluation of merits and quantum is clouded by optimism, anchoring, sunken costs bias, and an attachment to specific e.g. luxury/sentimental estate assets, then specialist mediation counsel (who may be more detached than a party’s solicitor), can add value by educating the party about the merits of their claim/defence, realistic chances of success and the litigation risks. This may result in a critical evaluation of beliefs and expectations. If both parties undertake this exercise early on in their dispute, this increases the opportunities for settlement.

This will be discussed in my next article, for Trusts & Trustees (Oxford University Press) about the ‘Mediation of Probate and Trust Disputes’ which I am aiming to complete and submit in July, for publication later this year.