Prior to the 1990s, the concept of mediation as a means to dispute resolution was not well established.
The latter day assumption is that absent mediation everything went to court, but the fact is that 90 per cent of matters were still settled before they went to trial. Little has changed; 90 per cent of matters still settle before matters go to trial.
Prior to the dawn of mediation, lawyers were much better disposed to negotiation and there werede facto mediations of sorts, which were known as preliminary conferences. Yet by and large, as I recall, there were no mediators. Instead, there may have been a case listing master who gave the lawyers a room to “thrash out” a deal and nine times out of ten, we did.
Alas, the love affair with mediation has resulted in a situation where lawyers have tossed negotiation out of the legal tool kit. Most lawyers are loath to negotiate; in fact too many negotiation is an anathema. Lawyers by and large don’t dream of getting on the “blower” and cutting a deal, let alone getting the clients into a room and collectively engineering an accord. Negotiation has become a forgotten art because the mantra of the day is that you settle your disputes at mediation.
For the record, I am a mediator and an advocate of mediation, but this homage is not to be confused with my ruing the demise of lawyer to lawyer negotiation as the most effective front end way of resolving a dispute. It is tragic that lawyers are so ill disposed to getting on the phone and negotiating before more altercationist petrol is poured on the fire.
So clients, once you brief your lawyers, instruct them to herd everybody into a room, thrash out a deal, keep the conflict in house and keep the commercial relationship intact, as they do in many Asian countries. Tell them to put the fire out rather than lubricating it with an accelerant. Don’t be “sucker punched” into thinking that the only way to resolve the dispute is to issue proceedings to mediate. At the very least, tell the lawyer to negotiate and then mediate if all else fails.
We applied this methodology in a multi-million dollar dispute last year, in which senior executives attended a meeting with lawyers in tow. We thrashed out what was close to a deal, but not quite. Both lawyers said “look as you guys are close, resolve to meet with one another without lawyers over a coffee.”
They took our advice, caught up for the coffee and did the deal. The lawyers then “mopped up” and committed the terms of settlement to writing and everyone moved on.