The privacy and copyright case involving the Duchess of Sussex (Meghan Markle) makes me ask the question – can mediation ever be used in a case where one party is likely to lose at trial? Parties may well think that they are in such a strong position there may as well go to trial or make an application to the Court to strike out the other party’s case or for summary judgment. However, there is seldom a case where there is a 100% chance of success. Parties also may factor in whether their opponent can actually pay the costs or damages even if they win. In most cases there is some element of risk. That risk creates a space for settlement.
In the case of HRH The Duchess of Sussex v Associated Newspapers Ltd [2021] EWHC 273 (Ch) the Claimant managed to get summary judgment on a large part of her claim, but at what cost? She has had to spend a lot of time and money bringing the case to court early and she may not get all those costs back. She has however short circuited the process and avoided a costly and potentially embarrassing public trial. Would mediation have achieved the same objective more cost effectively? A mediator could have helped to explain each party’s position to the other and tried to bring about a resolution. I have done this as a mediator, with the authority of the parties playing Devil’s advocate and explaining to one party why the other would argue that they would be successful in defending the claim or bringing the claim and why they argued that the best outcome would be to drop the claim or defence. It is surprising how often parties do not share the analysis of the merits or otherwise of their case.
The Claimant in this case may have felt so aggrieved that she wanted vindication, but that can also be achieved in mediation where a public apology can be agreed in certain circumstances. The claim has attracted a lot of unwelcome publicity and further intrusion. The newspaper may appeal, leading to further cost. Obtaining summary judgment may not in fact be the end of the case.
Similarly perhaps, a law firm recently won its case against a former client who had posted a negative review on Trust Pilot. The former client was ordered to pay £25,000 in damages. Will that former client ever pay? Now Trust Pilot is indicating that it may not take the offending post down,
So I do not accept that mediation would not have been appropriate (and still is appropriate) in this case. It is always worth trying to resolve matters outside Court.
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