Top Tips on Mediation – What is the Price of Peace?
Everyone has a price at which they are willing to settle a dispute.
One of the key things for an adviser to consider with their client before and at a mediation is “What is my price for peace, and what is the other party’s price for peace?” Certainly this is what a good mediator will be exploring as the mediation progresses.
That “price” may be purely monetary, and can be calculated by looking at the cost of alternatives (that are usually litigation or arbitration), and the risks involved. It is necessary to factor in other costs to that alternative such as time and resource in pursuing legal action, risk of reputational loss due to publicity, not to mention the stress and sleepless nights for the individuals involved.
The “price” may however include less tangible but possibly more valuable issues such as an apology, an agreement to change working practices going forward, a joint public statement, or an amendment to an existing contract.
Sadly, “price” may also include for a vindictive party seeing the other party suffer in order to carry out the settlement terms (although of course a solicitor may not act for a client driven by malice).
It follows that one party’s price for peace may be quite different to what their legal advisers say their entitlement should be. And so it should be. Because in most commercial matters while the law prescribes remedies, business people are free to choose whether to avail themselves of them. They may prefer to put the matter to bed and have more time and money to explore new opportunities.
So advisers, please continue to advise. But do not be surprised if your client does not follow your advice on the day of mediation. Parties, listen to your advisers, but have confidence in your ability to make your own decision, as it is only you who know how the jigsaw puzzle of the dispute in the context of your commercial and personal goals fit. Be bold, be brave, be bright.
As a mediator, I always “expect the unexpected” and in my experience outcomes at mediation can be surprising.
Even the most seemingly intractable and insoluble disputes can find a balancing point, albeit often not where anyone at 9.00am on the mediation day thought it might be.
Rebecca Attree, Attree & Co, Mediator and Solicitor