Should you mediate?
Consider the effect of the various Protocols prescribed by the CPR and the current case law, and the costs risks if you do not mediate.
Is this a dispute you want to settle? If so, then mediation is probably a sensible option.
Mediation is appropriate in nearly all cases - but there are some (rare) cases where the case is inherently unsuitable e.g. a genuine point of law at stake, or undefended debt action.
Caution is needed for cases involving fraud or another crime, or if there is a significant imbalance of power between the parties. Sometimes the refusing party can show that it reasonably believes it has a strong case that mediation becomes unsuitable – but is it subsequently proved right!? It will depends on facts/law in each case.
Are you ready to start negotiations? You will need to consider if:
- You know enough about your case to be able to recognise its strengths and weaknesses:
- You can sensibly negotiate and advise your client on an appropriate settlement:
- Do you understand their case?
- Do you have sufficient documents upon which to base your decision
This may be before or after disclosure of documents, but if before, consider the relative costs of the disclosure exercise and the benefit of settling the case now.
Other questions you may consider are:
- What previous settlement activity has there been? (If none, why not; if so, mediation may be the answer)
- Are the likely costs of mediation disproportionate? (Length of trial and its costs v mediator fee)
- Could mediation present a risk to the trial date? (Can be set up within a few days)
- Can the willing party show that mediation had any reasonable prospect of success? (Success is not always settlement - outcome may include withdrawal of a case, settlement in full, honest appraisal by all parties of the risks of litigation in joint meetings and in private)
When is the right time to mediate?
Don't leave it too late to mediate - delaying settlement discussions may cause unnecessary expense and anxiety for your client.
Of course you need to understand your case, and its strengths and weaknesses, before you can properly advise your client. Equally, the legal merits may not be the only consideration - what your client really needs (even if they don't know it yet) is a sensible commercial settlement before costs escalate.
It is always worth inviting the other party to attempt settlement by mediation, mentioning relevant case law and the CPR to help guard against costs.