You advised we had good prospects of success....so why would I consider mediation now?

Fiona Cameron, Partner in dispute resolution at Gillespie MacAndrew provides her thoughts on the timing of mediation and why, regardless of the stage of court proceedings or the prospects of success in the same, mediation is not a ‘last chance saloon’.

This was a question recently asked of me by a client which gave me pause for thought.  My instinct was to leap in to my (very well-rehearsed) spiel about why mediation can be such a positive process, but it struck me that said spiel could very easily come under attack when considered against the question posed.  The “It’s invariably cheaper than litigation” line usually helps focus minds, but here the chunky expensive preparation had all been done.  In a similar vein, because our proof dates were impending, my “If it works you’ll get an outcome sooner” card couldn’t be played.  “It allows for much more flexible outcomes” wasn’t going to cut it for my commercial pursuer client who wanted one thing and one thing only – cold hard cash.  And so I could have gone on.  Perhaps this case was one which fell into the ‘not suitable for mediation’ pile, I wondered.  Having reflected, the answer I gave focussed on the fact that litigation is all or nothing, and even the best prepared cases with strong prospects can produce unexpected results.  So why bet the house if we don’t have to.  The interesting nugget that came from this discussion however was my client’s perception that offering mediation would be seen as a weakness.  The lesson for me?  To emphasise to clients that mediation is not (and ought not be viewed as) something to embark on only as a last chance saloon.  Whilst the applicable benefits of it might vary depending on whether you’re at the start of the end of a case (or indeed at any stage in between), prospects of success alone ought not determine whether or not it can and should be offered.