What Are The Wrong Times To Mediate On A Case - Justin Patten, Human Law
06/03/17. What are the dangers of mediation and when should you not mediate?
People like me who mediate like to think of the virtues of mediating, but when does mediation not work?
Here are nine reasons not to mediate:
1. You need injunctive remedy – When rapid protective action is required to protect assets, evidence or reputation such as abuse of intellectual property rights it is best not to mediate.
2. If you are convinced that you will do better with Court. Court cases do fundamentally involve a significant level of risk but if as a professional advisor you are convinced that you will do better in Court, then you should avoid mediation, subject to the rules of the Court and the costs involved.
3. If you are searching for a legal precedent – For example a public judgement or an important clause in an international franchise contract or a ground breaking employment or inheritance case.
4. If you have no confidence that the other party would honour the terms of the agreement. In these circumstances your party’s best interests will be served by going directly towards trial and a court judgment.
5. If you have a limitation period – Formal legal proceedings need to be issued prior to expiry of limitation period although parties can consider an agreement to extend the period or an agreement to mediate in parallel with formal proceedings
6. If you or your client(if you are a professional) really wants his or her day in Court (Though you may have to explain your clients actions if the matter does go to Court).
7. The Negotiator’s Dilemma – open dialogue may tempt the other side to greater demands. This is a particular dilemma relating to mediation. Nevertheless with the way that the Courts are operating it is increasingly not a sign of weakness to propose mediation.
8. The other side may be on a fishing expedition though the mediator can test this. The other side may get a particular idea on a line on enquiry for how to pursue a case from a particular exchange that takes place in the case. Said against that, the mediator should be able to control this line of conduct. In my experience this only happens in a minority of cases.
9. If you think the other side ultimately is not going to settle. Some people are not motivated to settle.