Mediation Myths and Avoiding 'Litigatory Roulette'

I have written in the past about a few canards that people come up with for not mediating. I thought I’d leave the soppiest till last, so that I could really knock them on the head. But then, after a little more thought, I irritatingly started seeing the other side’s point of view, which I guess is the price you have to pay for being a mediator.

"We need cases to develop the law."

‘If everyone keeps going off and settling their disputes, we’d have no common law, no caselaw, no precedent— and then where would we be?’ At first sight, this is truly bonkers. It’s like saying, ‘Let’s encourage everyone to lead unhealthy lifestyles, because without sick people, we won’t have good medical research—and then where would we be?’ Answer: ‘If everyone were healthy, we wouldn’t need medical research—stoopid!’

But of course, it’s not so stoopid, because people get ill, notwithstanding a healthy lifestyle. If you eat less and move more, you reduce the risks, but don’t neutralise them. And in any event, realistically, it will never be that everyone is healthy.

By analogy, tough though it is for me to say this, it is useful when certain cases go all the way, and we receive the clearest guidance from the superior courts—useful for practitioners and useful for mediators. A binary decision about whether a notice served with last year’s prescribed information instead of this year’s, is valid or not, is obviously helpful. No-one in their right mind is going to fight a case when they’re on the wrong side of definitive caselaw—or if they do, the case won’t last long.

I confess that I don’t have the empirical evidence, but experience suggests that the proportion of cases which go to trial, and which involve binary decisions in the nature of a ‘test case’, is tiny. Even the long-awaited decision of the Supreme Court in Fearn v Tate Gallery [2023] UKSC 4 earlier this year contains useful guidance for courts on how to determine whether a nuisance has been sustained, but articulates criteria like ‘reasonableness’ and ‘substantial interference’ which are intensely objective. Highly experienced and respected judges at first instance, in the Court of Appeal, and the Supreme Court (split 3:2) came to very different conclusions and for differing reasons.

My point is that most cases do not need to fight. Those that do, and which result in definitive guidance on discreet points of law, are undoubtedly helpful. But the vast bulk involve disputes on fact (which are notoriously speculative) or nice points on existing caselaw, which are fun to argue if you are a lawyer, but are also speculative and dependent on the view of a particular judge on a particular day. For a fraction of the cost, delay, aggravation and uncertainty, there is a deal to be done.

"Doesn’t everybody hate a compromise?"

‘Everyone leaves a so-called “successful” mediation, crestfallen and down-hearted. Neither side got what they wanted. Where is the sense of vindication? The excitement and buzz resultant upon winning a case, having proved that you were right all along?’

There are a few misconceptions to unpick here.

• First, it’s simply not true that people, on completing a negotiation at which a consensual deal has been struck, leave the mediation down in the mouth and miserable.
• Second, not every dispute resolution requires the other side to be obliterated.
• Third, my experience is that most litigants are emphatically not Sylvester Stallone-type cliches, who need to see the other side totally pummelled before they can achieve satisfaction.

And yet, in cases where one side has behaved outrageously, and taken the other side to hell and back—you can understand why the wronged party is in no mood for negotiation. But, again, the number of cases in which this kind of zero-sum outcome is truly necessary is, in relative terms, small. If enough of the boxes are ticked, most people are sufficiently mature to know a good deal when they see it.

So, like so much in life, it’s complicated. But it’s also simple. It’s the parties who must make an assessment of how keen they are on litigatory roulette. Or, on whether their pockets are deep enough to give us all that decision on an unanswered point, which has been troubling lawyers for years. Or whether nothing less than abject humiliation of the other side is a crucial and indispensable part of any conclusion of this dispute. Maybe there are some cases which fall into this category. 10%? 20%? That still leaves 80% of cases in the court lists for which there was really a better way.

Doesn’t every litigant owe it to themselves, at least to give it a try? As Ian Drury memorably said—there are reasons to be cheerful.

This article was originally published in New Law Journal in December 2023.