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You are: Home Toptip We haven’t come to talk about the legal issues……that’s for the court room

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We haven’t come to talk about the legal issues……that’s for the court room

Tuesday 30 July 2019

Mediators often hear this from parties in mediation, especially when the counter-party has brought Counsel with them and they are fearful of being harangued on the law.

Mediation is all about the opportunity to negotiate. But negotiation is underpinned by the alternatives to settlement – what is likely to happen if the matter is litigated, for example. It is only sensible to explore with the other party or parties likely outcomes, to understand why they believe they are going to to be successful at trial and to persuade them as to the strength of your own (client’s) position. Necessarily, this will involve the legal issues alongside both factual and expert evidence, without which no proper risk analysis is possible. A short, well presented analysis of the law as it relates to the issues where one party is able to address directly the principal decision maker on the other side can be invaluable to the process even though these legal points may have been well ventilated in correspondence.

So, just because it’s a mediation, don’t shy away from demonstrating the legal merits especially as the lay people on the other side, probably the decision makers, are, for a short time, your captive audience. But be brief and adopt a collaborative tone rather than a confrontational or patronising one before moving on.

Mediator

Mark Jackson-Stops

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