For this installment, let’s look at how to bring people to the mediating table once you’ve decided to start the mediation process. If you missed my first article on how mediation can be good for your business, check it out here.
I’ve met many business owners that are quite reasonable people. They usually want to end a dispute quickly and amiably, so that they can preserve the business relationship. They are confident that both sides can agree on a resolution once they have an open channel.
Sometimes, they meet people who are openly hostile or insistent on having the court try the dispute. In these situations, I would remind them that whatever is said in the meeting stays in the meeting. Mediation is not just another meeting between parties for the purpose of negotiation.
Do you have a previous agreement with the other party to go to mediation during troubled times? If yes, great! But if not, you need to give them an objective reason to consider going for mediation.
Start Legal Proceedings
A surefire way to create a sense of urgency to go to mediation is to start legal proceedings. When you start a suit, you force the other side to respond for several reasons:
1) Any document with the court’s seal is bound to draw a reasonable person’s attention to it. This is usually enough to get the other side to start seeking legal advice.
2) A defendant has at the most 22 days to put up a defence once they are personally served with documents. Failing to do so means that the plaintiff can apply for judgment in default. They will get what they ask for most of the time, such as a specified sum of money. If the other side has empty pockets, there may not be much motivation to participate in court proceedings and chalk up a legal bill.
3) People who are new to court proceedings will ask for cost estimates, which most will find quite hard to swallow. This immediately creates a context for suggesting mediation as a less expensive and long-winded alternative.
4) Have both parties take clear positions on what happened and who’s responsible. This gives a good idea of what to expect to hear at mediation. For example, does the other party want money or to make the dispute go away? This step is particularly useful for court-based mediation as the time allocated is short and you don’t want to spend too much time figuring out what exactly the other side wants.
A Letter Of Demand Is Not Enough
Often, my clients have asked, “why not just send a letter of demand?” I don’t recommend it as the only thing to do due to the following:
– You become the boy who cries wolf if you fail to follow up on your letter of demand. If the other party doesn’t respond and you do not proceed to sue them (usually because of the cost of starting a suit), who will take your future letters of demand seriously?
– Letters of demand have very little legal effect. Not everyone will get anxious when they see a law firm’s name and just throw in the towel. This intimidation will not work on those who have already seen a lawyer or have experience with previous legal proceedings.
Use A Legal Suit As Leverage
One of the worst things to do during a mediation is to confuse the mediator about what is at stake, or make an agreement unworkable. This typically happens when you are trying to pack too many options into it.
Using a legal suit as leverage to get into mediation makes the perimeters of the dispute clearer, so that parties don’t spend too much time dredging up past or irrelevant issues at mediation.
Appeal To Relationships
This method can be especially effective when both sides wish to continue working with each other and are concerned about escalating the dispute too far.
For instance, I had a subcontractor client who could not agree what “relamping” meant. However, both parties recognised that they still wanted to work with each other and agreed to spend time in mediation to find a solution. In the end, they agreed on a threshold to decide when and which party would foot the cost of certain items in the scope of work.
Check Your Lawyer’s Attitude
Your lawyer’s attitude towards mediation and their relationship with the other party’s lawyers matter. Some lawyers with a more traditional mindset see mediation as a distraction to their “real work” of fighting the case at trial, and therefore spend little time and effort to bring the other side to the negotiating table or trying to work out options at mediation.
I have also seen mediation miscarriage because one side took an aggressive and hostile approach, which made it hard for us to suggest mediation to our clients. As I like to quote often (much to the chagrin of my wife who doesn’t believe in such metaphors), “for every action, there is an equal and opposite reaction”.
There is a difference between putting your foot down firmly and looking like you want to step on the other party’s toes, and thankfully most of my fellow lawyers appreciate this difference when they exchange letters with us.
So now that you have gotten the other side to agree to go to mediation, how do you make this work? Stay tuned for the upcoming installment on getting to the agreement.