“Every dispute has a sweet spot at which it is most susceptible to resolution.” Those were the words of the Master of the Rolls in a webinar given to the Law Society on 28th January 2021[1]. Here are some thoughts about when the sweet spot might be. If you are wondering when the best time to mediate your case might be, why not ask a mediator?
Identifying the mediation sweet spot
So, what did the Master of the Rolls mean when he talked about the “sweet spot”. How can we find it? This is all about being clear about what the litigation process can and cannot provide; understanding what mediation has to offer and assessing investment risk, balancing the costs burden of pursuing litigation against the consequences of doing so.
In my view the first and most obvious potential “sweet spot” for resolution is following compliance with the pre-action protocol and just before issue. Why do I say this is a sweet spot?
Firstly, the legal costs are (relatively) low and no court fees have been incurred.
Secondly, the parties are less likely to be entrenched in their views.
Finally, it is the right moment to stand back from the detail, review the client’s objectives and address the following questions.
- What are the prospects of success (expressed as a percentage)?
- Are there any client objectives which the court would not be able to provide?
- Are there any other limitations on “winning”?
- What is a realistic estimate of the likely costs of going to trial?
- What are the full costs and other implications of “losing”?
- How long it will take?
The benefits and risks of further investment in litigation
Against that background, both parties must decide whether to make a further investment of time and costs and accept that the inevitable emotional drain will continue.
The investment may be significant in that it will require the preparation of detailed statements of case and (for the claimant) the payment of court fees. The lawyers will advise, and the clients have to accept, that this is all a necessary part of the litigation process.
It is possible that the exchange of statements of case will help to clarify the issues, but as all litigators know, so often a case turns on the evidence, not just the law. It is unlikely that any new evidence will emerge until disclosure and/or exchange of witness statements. If the outcome is likely to depend upon expert evidence some will probably have been obtained already, but the parties may feel that more detailed expert evidence is required.
The litigation process is capable of delivering additional information and changing perceptions, but at what cost? At the very least the
parties need to consider the following
- what steps in the litigation will give the parties a better understanding of the strengths and weaknesses of both its own and the other party’s case and of the appropriate range for any settlement?
- what investment is required in order to achieve this?
- will that investment provide better answers to the review questions set out above?
- how confident are they that these steps will be helpful and not harmful?
The choice is not just for the claimant to make. The costs penalties of refusing to mediate, at this stage, allow all parties to put pressure on the other to mediate. If either party makes an offer to mediate at this stage it will be a brave opponent who refuses in light of the potential costs penalties.
If both parties consider the time for mediation is not right, I recommend that they identify when the (next) potential sweet spot will be. Too many cases settle at the doors of the court after a huge investment in trial preparation costs because the parties failed to do so. Any case that settles then did not need a judge but could have settled earlier, but the initiative to achieve this earlier through mediation lies with the parties.
Do you want a second opinion on when to mediate?
As a sole practitioner myself I know that it can sometimes be difficult to step back from the detail. A second opinion on the law and prospects is usually available from specialist counsel. Why? Because they are regularly in front of the judges arguing the latest caselaw and know the way the wind is blowing.
As I have said elsewhere, few people understand the astonishing potential for mediation to resolve difficult disputes until they have been involved in the process themselves. Its flexibility can often lead to an agreement which meets the interests and needs of the participants better than a court decision. Therefore, my suggestion is that if you want a second opinion on whether your dispute is at the mediation sweet spot why not ask an experienced mediator! They can also let you know whether mediation might work for your case and how you can make the best of the process.
Tony Hughes is a practising solicitor, CMC Registered Mediator, Secretary to the Association of South West Mediators, Mediation lead for Rotary District 1100 and mediator mentor and Trustee with Resolve West.
[1] The talk (published on the https://www.judiciary.uk website) was entitled “Reliable data and technology: the direction of travel for Civil Justice”. The comment was specifically about ADR initiatives, including mediation.
(This article first appeared in the Winter 2021 Edition of Solo magazine)
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