LEGAL
MEDIATION or MEDITATION When settling a dispute, Paul Grimwood, Partner and Head of Dispute Resolution at Hart Brown Solicitors explains the dos and don’ts of mediation themselves into corners. After all you may end up getting such good offers on four out of five issues that at the end of the day you may unexpectedly be prepared to move more on the fifth one in order to secure an overall deal. Anyone who has ever haggled in a market on holiday knows that the threat of walking away without a purchase is often a powerful one if not the most powerful one. Is it ever wise to take that option off the table?
H
aving qualified as a mediator in 2001 I have a keen interest in how different people approach negotiating the settlement of disputes. A lot of the mediations I do are inheritance disputes between family members so there is not only the various legal claims and counterclaims but just as importantly the deeply held emotions. In some situations it seems that the seeds of the current dispute have been sown many years before and have been simmering under the surface waiting for a seismic event such as the death of a parent to unleash the warring foes. In this context it has been morbidly fascinating to see how different politicians of different persuasions have approached the issue of Brexit negotiations, whether by actual participation in the process or by providing seemingly minute-by-minute pitch-side analysis.
Above all I try to dissuade parties in mediations from using the dreaded ‘F word’ for as long as possible as in the phrase “and that’s my final offer”. As ‘F words’ go, maintaining flexibility is usually much more fruitful in terms of trying to find a final resolution. In my litigation practice, I am often asked to advise whether we should just have a face-to-face negotiation with the other side or whether we should try mediation instead. I have lost count of the number of eminent QCs who have said words to the effect of “I do not need a mediator to show me how to negotiate”. Certainly with sufficiently experienced and specialist legal representatives on both sides it is difficult to say that the involvement of a mediator is essential in all disputes.
However, particularly in emotionally charged situations such as those involving families or small businesses where there may be considerable mistrust between the parties, it is often only the involvement of a specialist independent mediator which enables seemingly intractable disputes to be resolved on the day. Sometimes one or other of the parties, and often both of them, have totally unrealistic expectations going into the mediation which can only be revealed to them by being ‘reality tested’ by someone independent asking questions about what is really important to them and what is a realistic outcome. I sometimes wonder whether if the Brexit negotiations had involved a team of experienced independent mediators such as Harvard law professors it would have resulted in a better outcome overall. Unfortunately we may now be beyond the stage where mediation can assist leaving only perhaps meditation or even emigration!
To speak with Paul about a potential legal dispute, please call 01483 887766 or email PJG@hartbrown.co.uk
For example, if there are a number of specific issues within an overall dispute is it wise for a party to that dispute to set out at the beginning a series of immovable red lines beyond which they will not in any circumstances go? In my mediations I try to discourage parties from painting
SURREY BUSINESS
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