When is the right time to propose mediation to the other side?

Proposing mediation in seen in some circles as akin to flinching first in a gun fight; it shows vulnerability and leaves you exposed to a more experienced opponent.

Having been given the trust of their client in their skills and legal strength, no lawyer wants to have that dissolve with the line “I think we should try mediation”. This is particularly evident early on, when the client is still in a phase of litigious rage.

Yet while there is an ideal window of opportunity for mediation to occur, being the one to suggest the process will have little bearing on the outcome. The case is what the case is and holding out in a Mexican stand-off will do nothing to strengthen it.

The fallacy comes about because of that gun-fight mentality – that there can be only one winner and anything else is a compromise.

Mediation need not result in a compromise and I firmly believe that with a little bit of give and take, most cases can be resolved to the satisfaction of both parties. The best outcomes are usually reached when mediation occurs sooner rather than later.

While litigation is still the most common tool used in dispute resolution, the reality is that less than five per  cent of cases end up in court. The rest are settled when a barrister is fully briefed and the details of the case are all laid out on the table. It’s at this point that the gun-fight “we’re going to smash them” mentality of an over-zealous solicitor starts to wane and a negotiated settlement starts to look like a better option than a judgement. However by this point, the legal fees have clocked up and negotiation becomes more difficult with it often being necessary to mediate not just the issues at stake but the costs as well.

The timing is important, and it’s a fine balance between going too early and going too late.

Mediation can, and should, take place as soon as all of the issues involved have been clearly defined along with the corresponding positions of the parties involved. This is usually after letters have been exchanged and the parties have had time to consider the opposing positions. Going to mediation any earlier than this leaves the discussions open to failure in a quagmire of confusion and emotions rather than facts and clearly-articulated positions. Going much later than this and emotions and innuendo have had time to build up and risk clouding the real issues at stake.

Workplace disputes, family matters, estate wrangles and partnership disagreements all lend themselves to early mediation; coming to an mutually-acceptable solution before too much bad blood is created between the parties to make it if not impossible, a whole lot harder.

There is rarely an argument for holding off from mediation but where the case is complex and there are many parties involved or one or more key parties is unrepresented, it is important that everyone has had time to agree on the issues and been able to fully consider their stance. If in doubt, presenting exchanged letters and any other written material to an experienced mediator will allow them to quickly assess the matter and spot any lack of clarity between the parties.

About the author

Philip Crawford is one of Sydneys most recognised Mediators & Negotiators in the legal industry.

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