In the second part of the series of mediation hints and tips we look at when is the right time to use mediation.
Identifying what cases are right for mediation, and at what stage, is part of the good claims negotiator’s art. Here are 10 clues that might tell you the time is ripe.
1. You begin to blame your opponent for the failure to make progress
You may be right – they may be all those things you call them in which case no amount of negotiation is going to take matters forward. Or it may be that you and your opponent have got on the wrong side of each other and the dispute is becoming personal. Once personalities enter into the equation the real issues melt into the background.
There is no criticism here; that’s life. We get on with some better than others, and others not at all. Rather than leave the case to roll on call in a neutral to help re-open communications.
2. “Let them sweat.”
Once you start to hear yourself using this sort of phrase then the reality is that negotiations have stalled. Unless that is managed the dispute will roll on as will time and costs. Other such phrases to watch out for are “the ball is in his court”, “he can come to me”, and “let him put that in his pipe” (a little Jeeves and Wooster the last one but you know what I mean).
3. You may have overplayed your hand.
Your “final” offer (either put in those express terms or not) has received no response or has been rejected. You feel that you had more to offer and would like to do so but there is no way back without a climbdown.
This happens to all negotiators at some stage. It is a risk that brave negotiators take every day to get a good deal, and occasionally it leads to this stalemate. In our experience it is often not just one negotiator in this position but both – one will pay more and the other will give more ground. But the way the negotiation has gone makes further progress difficult.
4. “I am waiting for the next window of opportunity”.
You could be waiting a long time and in the meantime costs are accruing. See 3 above
5. “The case isn’t ready to discuss”.
For mediation you do not need the detail that you need for a trial. With many cases a good negotiator can have a very “good feel” for the figures without putting all the bits in the jigsaw (an expensive process in litigation). If you have a feel for the issues and the figures you can mediate it. It is even possible to mediate leaving points for later resolution between the parties and with an agree formula and time scale to do so. Use mediation to settle now taking a broad brush approach. Save all the costs yet to come arguing the small stuff.
Read the next five clues to identifying when to use mediation here.