What do you do if your mediation fails? Who pays the costs of the failed mediation? What happens to any legal proceedings? Can you try mediation again?
Leaving offers open
If the parties decide that no further progress is going to be made I will ask them to leave their 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 can continue effective settlement communications.
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. 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 may feel 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.
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.