Negotiation or Mediation? The Brexit Dimension
I have been doing litigation since qualification in 1987. In the old days, suggesting to the other side that you wanted to have a discussion about settling a case was taken as a sign of weakness. Fortunately, we now live in more enlightened times. These days, an unwillingness to participate in attempts to settle a case may be penalised in costs. In one recent case, the court said that parties are obliged to make reasonable offers to settle and to respond properly to offers made by the other side.
Having qualified as a mediator in 2001, I am obviously a supporter of mediation. In terms of seeking to settle my own cases, I often end up assessing with the client whether in their case it is better to have a mediation or a joint settlement meeting. I remember one senior barrister saying words to the effect of “I don’t need a mediator to tell me how to negotiate”.
My advice to clients is generally that if all parties are represented by people who know what they are doing and, all parties have generally acted reasonably in relation to the dispute, then joint settlement meetings can be effective. If, however, those considerations do not apply, then the presence of a mediator is probably essential in order to bring common sense and reasonableness to bear with a view to getting a successful outcome.
The Brexit negotiations are possibly the most important negotiations in which this country has ever been involved. Obviously, both sides in the past have said a lot of things in the press about the other side and the negotiation process generally, which are hardly likely to have improved the chances of a successful outcome. In these circumstances, might it not be better for an independent mediator, or more probably a team of mediators, to become involved to increase the chances of success?
This is not legal advice; it is intended to provide information of general interest about current legal issues.