How to encourage a reluctant opponent to mediate

It can sometimes be the case that you can see potential for the parties to explore resolution of a dispute by mediation, but the other party is reluctant to do so. If that happens, what could you do to try and encourage mediation?

It obviously helps to try and find out why the opponent is reluctant to proceed. Is the objection from the lawyer or his client, and in either case why?

Sometimes it can be due to due one party being further advanced in its preparation of the case than the other. If so, a delay could be proposed for the parties to review the position and an agreement to discuss mediation at a set point in the future.

A reluctance to mediate can sometimes be due to one party’s lawyers being less experienced in mediation than the other, but they may be reluctant to state this as a reason. If that is the case, it is more likely that helpful comments as to the benefits of the process can be more useful, to try and engage the reluctant party in discussions with a potential mediator to give reassurance and an explanation of the process. The reluctant party may be more willing to be guided through the process by a mediator than you.

It can be the case that a party is reluctant to spend additional fees on preparing and attending a mediation that they may see as not being a core cost to the litigation process. If that is the case, you could make the point that much of the preparatory work for mediation would be required in litigation anyway and so there is not a complete waste of resource. In addition, even if a case does not settle on the day, it is rare for a party not to know (a) more about the opponent’s case and (b) more about their own case and relative strengths and weaknesses following mediation.

That can lead to an increased chance of settlement shortly after mediation by virtue of well-aimed Part 36 Offer to settle the case, further discussions between lawyers (possibly involving the mediator) or agreement by the parties as to issues in the case that can short-cut the litigation process (thereby saving resources).

In some circumstances it may be worthwhile considering offering to pay the cost of the mediator in attending the mediation as an incentive to encourage the other party to attend (usually the cost is split between the parties).

A common strategy although one that does not necessarily encourage the right tone at the outset, is to threaten the other party by drawing their refusal to mediate to the attention of the Judge, and that ultimately they may be punished in a costs award against them.

That can often result in the other party digging in its heels and reiterating its confidence in the case and still refusing to mediate (they may feel bullied).

It may be that once all other attempts have failed a “marker” to this effect is needed but in my experience it is best to try other efforts first.

Finally, do not be afraid to use a mediator. I have certainly been asked on occasions to contact a party and hold a confidential no-obligation conversation with them to talk through the mediation process and its advantages and disadvantages. The involvement at this early stage can be genuinely helpful in getting the parties to the table.