Not only is mediation itself an extremely effective way of curtailing disputes and saving costs, but also the proposal to mediate can be an important strategic step if used correctly.
The party that proposes the mediation no longer appears weak. More often than not gains some or all the following:
- They are seen as positive and constructive. It takes great negativity to refuse, and smacks of petulance and churlishness.
- They are seen to rise above the stalemate (and possible ill feeling).
- Professionalism – they still have constructive solutions to offer while the other side felt bankrupt of and despondent of finding a way forward.
- They show initiative and imagination, and maturity of thinking.
But the benefits of proposing mediation do not end there. There are some proven “legal” advantages also that cannot be overlooked. There is a mediation wind of change blowing through the Courts. It has been on the long range forecast for some years. Those that reject exploring a mediated solution do so at their peril and may be heavily penalised in costs even if they succeed in litigation. The days may be gone when a litigant is entitled to have “his day in Court” (Rolf v de Guerin 2011 EWCA Civ 78; British Waterways Board v Royal Sun Alliance 2012 EWHC 460).
In the light of this it is remarkable that mediation is often suggested almost as an aside, and undocumented. To gain real strategic advantage it needs to put formally in writing. One would not put a proposal to settle in this way; that would be done with all the written formality of a Part 36 offer. Mediation should be proposed with similar formality so the letter of proposal, clear in its terms, can be shown to the Court.
The letter should not of course be hostile, or demanding but constructive and conciliatory and might follow on from a conversation. But the written proposal underscores the strategic advantages and may gain the costs advantages that the courts are now more willing to acknowledge.