Disadvantages of Mediation?
David Wileman deciphers the downsides to mediation, and whether there actually are any...
I was recently asked to write an article on the disadvantages of mediation. I must admit this came as American’s would say as “a bit of a curve ball” as normally people always want to know about the advantages of mediation. This request brought two immediate thoughts to mind, firstly “What are the disadvantages of Mediation?” and secondly “Are there any disadvantages of mediating?”.
It is a difficult question as I have long been a fan of mediation. In order to fulfil the brief therefore I thought that I should firstly consider what mediation is from two points of view. Those in favour of mediation describe it as a dynamic, structured process where an impartial third party, the mediator, assists the parties in understanding the merits of each other's case in order to narrow the differences and assist a negotiated settlement.
Those who dislike mediation describe it as a talking shop, a waste of money and a pointless expenditure of time where the other side does not listen and the whole process becomes an exercise in futility. Who is correct?
In my experience both points of view gain some traction to a greater or lesser extent. The problem is, as a slightly politically incorrect Project Manager of mine used to say “You can take a Hippy to water, but you can’t make him wash.”
Some parties arrive at the mediation kicking and screaming only turning up on the day because they do not want to be criticised by a judge further down the dispute process. I have attended a mediation like this, and it is not fun. One party is setting out its case and the other party is just watching the clocks turn determined to say nothing, agree nothing and generally pour scorn on the proceedings. Whilst this is frustrating would you call it a disadvantage?
It all depends on your point of view. Even if you feel that the other party to a dispute will turn up to the mediation in this manner it is always worth preparing and turning up with a confident smile. Set out your case and listen to the deafening silence coming back from across the table. Reach the end of the day and walk away in the knowledge or hope that some of your words, statements or even PowerPoint slides may have hit the mark. They may not have responded in the mediation, but it would be a foolish person who does not consider the weight of evidence against them when it is presented to them in a prepared and structured manner.
It may have seemed like a complete waste of time and money but there is always hope that the penny may have dropped. Mediations of this type are always a good time to get your experts to set out why their assessment is correct. The opposition will hopefully note the well-structured and supported assessment set before it. Who cares if they fail to respond likewise on the day? It was a relatively cheap day when you consider the ultimate costs of an Arbitration or Court Case.
Therefore, attending a mediation ensures that even an unwilling Party is made to sit and listen to the strengths of the other side's case.
Parties also arrive at mediation willing to engage but ill prepared and unwilling to budge. A lack of preparation occasionally allows a party to attend a mediation in full denial that it has any points to concede.
The failure to prepare generally makes parties dig their respective heels in and consequently the mediation becomes (almost) a bit of a waste of time. The reason I say “almost” is that even if a party arrives ill prepared, the mediator will still give the prepared party the chance to state its position and to lay out why it is confident of its entitlement.
Therefore, even an ill prepared party is made to sit and listen to the strengths of the other side's case.
Parties that do engage, in my experience, do narrow the gaps and test each other’s relative strengths and weaknesses. The chance of this improves when both sides attend with their experts. The experts are often sent off into side meetings, sometimes with lawyers and clients and sometimes without lawyers and clients but in all cases, in my experience, with the mediator. Whoever attends the side meetings is generally irrelevant as it allows truly independent experts to get the chance to dig and probe into the positions and then take away that information for dissemination with the Clients.
From the point of view of a party appointing an expert, it is also a good time to listen to what your own expert is saying when faced with the opposing points of the other expert. It has been known for experts, who have not read their duties under CPR35 and have never heard of the Ikarian Reefer, to hide its instructing side's own problems up his or her respective jumper. This is not sensible as invariably any problems generally come home to roost and the last thing a Client wants is these ‘culpable’ issues coming out during a very expensive court case.
At the end of the day, however the mediation has proceeded, each party is then able to sit down in a quiet room and discuss what they have learned from the day. This is especially important when it comes down to mediating disputes which relate to delay. More often than not the delay analysis is based on some form of an as-planned vs as-built / collapsed as-built / as-built longest path assessment. The reason for this is that the majority of delay disputes that are mediated relate to projects that are complete and were impacted by many possible competing delays. Disputes which relate to single delays and the like don’t often need to go to mediation.
Delay and critical or near critical paths can turn on the missing or addition of one logical link or one piece of contemporaneous evidence and are therefore quite often subject to differing points of view between the instructed experts. The benefit of mediating a dispute related delay case is that the parties are allowed to test each other’s cases and throw the proverbial hand grenade into the mix to see if the other side recognises its weakness. The earlier any weaknesses in a case are determined the less likely significant costs will be spent pursuing unsupportable claims.
You will see from the above that I am a fan of mediation. If the mediation is run well by an experienced mediator with opposing well prepared sides, it can be a rewarding day that narrows the issues and brings the parties that little bit closer to a negotiated settlement.
The main disadvantage that I can see relates to parties that have very (very) good cases. Sometimes parties can be drawn into a horse trade when, by way of example, if the claimant had stood its ground and proceeded to a third-party dispute resolution determination it would have walked away with a significant win and a large portion of its costs.
In summary, mediation can be frustrating, annoying, wholly negative, enlightening and a wholly positive experience. Advantages many, disadvantages few!