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Finding a way – Mediation

Finding a way

The BBC reported last week that Jeremy Corbyn had offered to “reach out” to Theresa May over Brexit saying that if she delivered a “sensible” deal, he would support it.

That brings to mind the commercial disputes we deal with where apparently intractable differences have to be resolved.  Ultimately matters will be decided on by a Court.  That can be unpredictable and expensive.  Lawyers letters going backwards and forwards prior due and during litigation are costly and often the exchanges simply harden the attitudes of the parties.  With all this in mind it is no wonder that litigation has become less common even in commercial matters and certainly for lower value disputes.  The costs of ending up in Court on a heavily contested case will run very quickly into five figures and substantial litigation involving detailed disclosure, numerous witnesses, experts and a trial will almost without exception result in a six figure bill … and the risk of at least a similar amount again if the case is lost.

So a more carefully considered approach is often required.  And one of the tools along the way can be mediation.  Something Jeremy and Theresa in reality are unlikely to consider to bridge any gap between them!  However, you will all have heard about it and it can be very useful in commercial disputes.  Mediators are focused on facilitating a settlement and you often find the most reluctant parties ultimately agreeing terms after a long day’s (and evening’s) process. I think sometimes that it is a taster of the endurance needed for litigation that wears them down!  Mediation has a strong advantage of confidentiality and also it can result in commercial relationships being partially restored.  That is not generally my experience as the process can still be fractious … and it is still expensive although nowhere near as bad as going to trial.  Careful preparation is needed and there are points in proceedings where it is not possible to mediate (for example where information has not yet been disclosed so parties can appreciate the strength or weaknesses of each other’s position).

The other route for potential litigants is to take it on themselves to approach the matter commercially, to understand the risk and to move forward and negotiate sooner rather than later.  Many potential litigants do this long before going to Court.  The lawyer’s involvement can be limited to giving some initial advice, pointers and guidance as to the law and as to negotiating strategy.  If a deal is concluded, it may be helpful at that point to have terms recorded with the help of a lawyer, but the substance of the deal is done.

The Supreme Court will be no help to Theresa or Jeremy on Brexit.  We all have our own view (or more likely guess no less informed than anyone else’s) as to where things will end up.  To resolve what seems to be an impasse requires willingness both ways and some common ground.  Sadly, I suspect this is one of those things which will not be capable of settlement even with the most skilled mediator in place!   In every day commercial life, the same can happen, but more often than not there is a way through – and the challenge is finding it sooner leaving our business clients with time and money to focus on what they are best doing.

If you have a query or would like to book an appointment please get in touch with our First Contact team on 01256 320555 or email mail@clarkeandson.co.uk

Paul Cowdery

Dispute Resolution Partner

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