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Why Mediate?

Posted by Mark Rothman November 24, 2016

Tagged Under: Mediate

When I was a student, deciding what to do, being a Lawyer seemed the pinnacle of what I could achieve. Whilst it may betray my age and generation by admitting it, I simply didn’t know what a Mediator was.

I therefore went through the normal process, A-Levels, University, Degree, LPC and then found my niche in Litigation. And I made a great success of it. I rose quickly to Head of Litigation and have been involved in some extremely complex, high value and rewarding cases. So why become a mediator?

I remember my first experience of mediation quite vividly. I was one year qualified and had a client who seemed to be a perpetual Defendant. They had a claim against them which didn’t look too optimistic from their perspective and was certainly going to be incredibly costly. Mediation as a Litigator’s tool was in its infancy and was not regularly used. However, we were able to persuade the other side to attend mediation shortly after the issue of the claim and the filing of a defence.

There was a lot of distrust between the parties and so we utilised the services of the Clerksroom [link to www.clerksroom .com] on the basis that they would send out 3 c.v.’s from which we would choose a mediator. Mediator chosen, we went to the Academy of Experts in Gray’s Inn for a full day’s Mediation. I learnt so much from that day. Firstly, the parties were, at times in the same room. These same parties that could barely exchange a civil word or exchange of correspondence prior to Solicitor’s instruction. And although there were some heated exchanges, it all stayed just on the right side of civil. We were also able to have a frank, without prejudice, discussion about the merits of the case.

And best of all, we were able to settle a claim on terms acceptable to our client, eliminating any litigation risk, putting a halt to costs being incurred and the Managing Director’s time being used up.

It also revealed something else that I have found fascinating having now conducted numerous mediations as a mediator. Even if there is a perceived imbalance in the strength of each parties positions, there really is (or should be) a desire to settle matters on a certain basis rather than take your chances in court. As a Law Student you think of Litigation as a win or lose scenario, when in fact it can be a ‘win/win’ or even merely a satisfactory outcome with no winners or losers.