How to suggest mediation without appearing weak

There is a perception that to offer mediation is a sign of weakness. While this is simply not true, the ‘stigma’ remains. Some solicitors still feel that to offer mediation shows a lack of confidence in the case and will give the other side confidence.

We all know that no solicitor should say they have a 100% chance of winning, no one can ever predict with certainty what is going to happen in the courtroom. All parties face the risks of litigation.

Despite all of the obvious reasons why mediation isn’t the weak option, and despite the other side knowing this (or at least they should know this) this hesitation to be the first one to suggest mediation does sometime remain.  We have seen situations where both solicitors want to mediate but won’t be the “first to blink”.

We have compiled some useful points to help you persuade the other side that mediation is appropriate without showing any lack of confidence in your own case:

  1. Your obligations under the CPR

    • Quoting the White Book is always a good way to introduce the idea of mediation. No solicitor wants to be seen to breach their obligations under the Civil Procedure Rules so must consider references to “the Overriding Objective”, “proportionality”, “in the interests of saving costs”, and “using litigation as the last resort”
    • Paragraph 3 of the Practice Direction on Pre-Action Conduct and Protocols requires both parties to consider mediation. This is also a continuing obligation throughout the life of the proceedings, so can be referred to at any time.
    • A reference to the fact that you have completed the Protocol process having exchanged Letters of Claim and Letters of Reply, but before you move to issue proceedings the only outstanding issue is mediation and putting the onus back on the other side by saying something along the lines of ”this firm is usually in favour of considering mediation and we would welcome your thoughts” again can provide a platform for discussion without a reference to the merits of your case.
    • Virtually the first direction from every case management conference directs mediation should be considered – use it as the point of discussion before moving to the other directions
  2. Case Law

    • There is a raft of case law showing the that the court’s attitude is pro mediation. Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576) and PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288 are the key cases to quote in correspondence. Point out that should they fail to accept the offer mediation, whatever the result they are putting their clients at risk on costs. 
    • If they ignore the case law, invite them to explain on what grounds they feel mediation is not appropriate. Case such as Hurst v Leeming are rare and this will hopefully make them reflect.
  3. Costs

    • You must always be mindful of incurring disproportionate costs, and mediation is one way to deal with this. 
    • The costs case management conference now brings home the full extent of the costs of the case. You can use the combined figure of both parties’ costs which is greater than the amount in dispute, let alone the difference on where the figure where parties may settle.
    • If the other side refuses mediation you should, following on from Halsey and PGF II, be able to seek your costs. Make sure you point this out to the other side, not only during the discussion and quoting the case law in the initial correspondence, but more importantly when they refuse just so they are aware of the cost risk they are putting their client at risk on costs. It is there for you to refer to the Court that there was no misunderstanding and the costs warning may bring them back to the negotiating table.
  4. Discussions between the parties
    • Every discussion gives you the opportunity to say “oh, I suppose we also better deal with the mediation question”. I find having raised it, it is better not to advance your views, but ask what they think. This puts the onus on them to make the first refusal and appear unreasonable. It usually produces a guarded response with some hint they would consider mediation and you can then seize on their offer without it looking as though it comes from you and desperation.
    • A frank discussion with the other side to say that the costs of the litigation mean that regardless of the merits of your respective cases it is not in either parties interests to litigate and that there is an obligation on both solicitors to stop them going down this suicidal route. Put the obligation on both solicitors to come up with an alternative suggestion, is a platform to introduce mediation.

Sometimes you won’t be able to convince the other party that mediation is the most appropriate course of action. This could be down to the client – they may just be unable to face their counterparty, or it could be the solicitor – not all solicitors are happy to have their client see them in action. When this happens there is little you can do  - our sample rejection letter may help.