Willing to compromise?

Believing all that you hear in a mediation is a recipe for disaster.

Parties, or their representatives, often say that their latest offer is the highest they can go only for the other side to find, when the coats are on and the door beckons, a revised offer appears.

Does calling the other side’s bluff work? Do you lose credibility if you say in plenary that: “Under no circumstances will you be paying anything” only to later concede that a payment may be available?

Most parties come to a mediation wanting a settlement and are willing to compromise to get there. Knowing that, and the extent that you are willing to compromise, is key.  Good preparation on this, in advance of the mediation, is invaluable when the temperature is raised and threats of walk out are being made.

There is a time and place for the beating of chests but once the allegations have been laid bare, it is time to move on to risk assessment. It is essential for all parties to consider what they can live with to get a deal done.  This is almost always less than 100% of the claim or defence but it is also always better than the worst alternative - a long drawn out fight, business minds diverted away from the business, as well the issue of costs risked in that alternative, non-guaranteed outcome at court.  Parties should instead be looking to have transparent conversations and making pragmatic decisions so that sensible compromises are offered, leading to a resolution that all parties can accept.