One thing that mediators should bring to the negotiation process is persistence.
Once a settlement has been agreed in outline, for the agreement to be binding in accordance with the Mediation Agreement, it needs to be set down in writing and signed by the parties.
Frequently, at the end of a long day, parties want to leave the drafting until “tomorrow”.
Generally, it is better to keep going and complete a written agreement when everyone is present and focused on the task in hand.
Most mediations settle on the day with settlement rates at 75% and above with a further 15% of cases settling in the days and weeks following.
But what if the day ends with no deal?
Here are six things skilled mediation advocates do at the end of a mediation in the event of no settlement.
1. Let each ending be the next beginning.
Consider holding a closing joint meeting. Disappointment and frustration after a long day results in everyone wanting to go home or log-off.
Meeting together to take stock, consider next steps and talk further can produce movement and resolution. At the very least, it will lay the foundations for possible further discussions.
2. Last offers to remain open for acceptance?
It is very likely that the parties will have made closing offers on the mediation day.
Try to agree that these will remain “on the table” for a reasonable period after the mediation, recorded in writing, if possible, to avoid misunderstanding.
These offers may be accepted or lead to further discussion which does lead to an agreement.
3. Keep in touch.
The mediator should arrange to call the parties, either directly or through their representatives within a few days following the mediation.
Often this can lead to further dialogue between the parties resulting in settlement in the days following the meeting.
Mediation advocates need to be open to this and appreciate that things can change after a short period of reflection.
4. Agree the next steps.
Possibly court proceedings will follow, or further steps in existing proceedings.
In what ways can the parties cooperate, in accordance with the Civil Procedure Rules, to facilitate the narrowing of issues and cost efficiency?
5. Keep the possibility of settlement alive.
The mediation discussions can clarify issues that need further investigation, that additional evidence must be obtained including, perhaps, that expert evidence is required.
It is worth agreeing that the mediator will make contact once these stages have been completed to discuss changes in the parties understanding of the case and the scope for further settlement discussion.
6. Be clear on the status of any post mediation day negotiations.
Has the mediation ended and that the requirement in the Mediation Agreement for a written agreement no longer applies?
Has it been agreed that the mediation is continuing, or is “adjourned?”
Is it clear that the discussion in the time following the mediation, and each aspect of it, is “without prejudice?”
Final Thoughts
No settlement on the day does not mean that the mediation has “failed.”
Frequently, where there is no resolution to a dispute on the day of the mediation, a lot can be done post-mediation to get a settlement.
In any event, the parties will have a better understanding of the reasons for any gap between them creating a basis for future negotiations and settlement later.
Issues in the dispute should, at the very least, be clearer.
It is good mediation advocacy to be aware of the importance of maintaining dialogue with those representing the other parties, and, where appropriate, of using the mediator to facilitate a more fruitful working relationship in the interests of the client.
However intractable the dispute, there should always be scope for further negotiation and the mediator should persist, at the right time, in helping the parties to have that dialogue.