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There was a story in the press regarding Coleen Rooney and Rebekah Vardy attending an online zoom mediation but not resolving their dispute.

https://www.dailymail.co.uk/tvshowbiz/article-8397233/Coleen-Rooney-SACKS-lawyers-amid-messy-Rebekah-Vardy-court-battle.html

Apparently “The women held an online Alternative Dispute Resolution mediation meeting in May alongside their lawyers after it was claimed the wife of Leicester City and England striker Jamie Vardy, threatened to sue Coleen for libel.”

This raises the interesting question of why mediation sometimes fails and what to do if it does.

The first point to make is choose your mediator with care. It is possible that one of ProMediate’s panel might have succeeded in resolving this case but we do not know why it failed to resolve. Often people are not prepared to compromise or have unrealistic expectations. Sometimes they cannot meet the other party’s demands. On occasions people prefer not to resolve the case as they think the Court outcome will be better for them. It is important to evaluate the risk and balance up the costs that will be incurred if the case doesn’t settle. Unfortunately sometimes lawyers can be an impediment to resolution or the lack of legal representation can be a blockage. A helpful lawyer supporting the parties can be a great help in explaining the legal and commercial position to their client. Sometimes upon reflection shortly after the mediation now that communications have started, the parties are able to settle after the mediation or issues are narrowed and parties agree to take stock and resolve things at a later stage. It is possible to have a further mediation meeting at a later stage if, say, more evidence is required. So a “failed” mediation may in fact be the positive catalyst for eventual settlement. So I would say, never give up hope and go into the mediation with a positive mindset. It generally has a good chance of success, however you define it. In our experience over 90% of cases settle so it is well worth giving it a go.

The NHSR which deals with clinical negligence claims last year reported that there was “overwhelming evidence of the benefits of mediation, for patients, families and NHS staff”.

It said: “Whilst mediation can be employed for all types of claims, the use of mediation should be tailored for greater effect. The analysis of the data revealed that a significant number of mediations took place after legal proceedings had been commenced and a directions timetable set by the court. The case costs invariably become more expensive after proceedings are commenced.

“Mediation as an intervention can be more effective if carried out at an earlier stage in the lifecycle of the claim.”

There was, it added, an underuse of mediation for personal injury claims and costs disputes. “The promotion of the benefits of mediation in these areas should be explored further.”

The research showed that, in the few cases where claimants were not represented at the mediation, 46% did not settle; the figure was only 19% were they were represented.

It also revealed that the highest probability of settling on the day was when neither claimant nor defendant counsel attend.

“[This] appears to give credence to the view that the attendance of counsel is not necessary for every mediation. However, it remains appropriate to instruct counsel to attend complex, high value, and multi-party mediations.”

This would suggest that at least in clinical negligence matters there is an increased chance of resolution where the parties are represented by a solicitor but their barrister does not attend!

So to summarise there are many reasons why a mediation might fail, but what are the main causes of “mediation failure”?

1. The parties are not prepared or need to take instructions.

2. It’s too soon – the parties need to get more evidence.

3. Something new comes up in the mediation and the parties need time to investigate further.

4. The parties have unrealistic expectations as to settlement levels or one party has no funds or cannot meet the liability.

5. The parties have not accurately assessed the risk or have deep pockets and are not concerned about the risk. It is a “matter of principle.”

6. Psychologically the parties are invested in the dispute and cannot let go.

7. The parties’ advisors are a blockage to settlement or the opposite: the parties have no advisor and cannot accurately assess the merits of their case.

8. The mediator is not good at bringing the parties together and is ineffective.

Not resolving the dispute on the day doesn’t have to mean the end of negotiations. What do you do if your mediation doesn’t result in settlement?

1. Carry on negotiating! It is surprising how often parties can still resolve their cases after the mediation has finished with a little more input from the mediator.

2. Carry on litigating and try again later. Sometimes people need to obtain extra evidence or go further down the line before holding a further mediation meeting or simply making a protective part 36 offer along the lines of offers made in the mediation. Sometimes if a lawyer is involved they can simply pick up the phone to their opposing lawyer and cross the t’s and dot the i’s.

3. Give us a ring and we can guide you through the process.