The majority of mediations result in parties reaching agreement on the day and resolving their conflict, however sometimes on this measurement mediation fails. What happens next and is settlement the only measure of success?
Leaving offers open
If at a mediation all parties acknowledge that no further progress is going to be made I will ask each party to leave its last offer open for a period of a few days. Why? Because parties to disputes often reflect on their position after a mediation when they are away from the dispute and have time for quiet reflection. A considerable proportion of mediations that do not settle on the day settle very shortly afterwards. I therefore keep in touch with the parties to ensure they still have a easy method of communication should they wish to resolve matters.
Narrowing the issues
Although settlement may not have occurred the parties should come away from the mediation with a clear understanding of their opponent’s position and the issues which remain outstanding are likely to be fewer in number and much narrower than they were at the start of the process. Although participants often complain frustratedly at the end of a mediation that they have “wasted their time” that is rarely the case.
Return to the litigation
If legal proceedings were already under way they can continue. Anything that was said or offered or conceded during the mediation was without prejudice. That means neither party can rely on it in the legal proceedings. For a detailed legal discussion of this point see the excellent article on confidentiality and without prejudice by experienced mediator Tim Wallis.
The Mediator’s fee
The fee is paid in advance of the mediation, usually each side will pay half. The question arises whether or not you can recover your fees from the other side if your case is ultimately successful at court. The answer to that depends entirely on the wording of the mediation agreement you signed before the mediation and you should make sure you understand it before signing.
See more mediation FAQs here or send me your mediation question here.
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