星空传媒

I used to be a mediation sceptic. I really didn鈥檛 understand how a settlement could be achieved by bringing in someone from outside who knew virtually nothing about the case. If both sides were reasonable commercial people with more or less competent solicitors, they should always be able to sort out a compromise long before trial. Trials would only happen when one party was badly advised or just plain bonkers.

锘縏he later the mediation takes place, the more the parties understand the issues and so the greater the chance of settlement

It is quite a few years since I was converted. A client told me that he wanted to mediate and as he was paying my bill I could not really object. It worked. So did the next one. Then two solicitors asked me to be the mediator in their case. That worked too.

Times have moved on. Scepticism used to be very common, but few lawyers or clients with much experience of construction disputes admit to it these days. Mediation is now conventional and although the courts will not go so far as to insist on mediation before trial they will expect the parties to give it serious consideration.

The difficult question now is not whether or not to mediate, but when to mediate. There are good reasons for and against mediating at just about every stage of the dispute process. The earlier the mediation takes place, the more there is to save in legal and administrative costs. But the later the mediation takes place, the more the parties understand the issues and so the greater the chance of settlement.

Here are some possibilities:

Before lawyers are instructed

Nobody has spent anything in legal costs and so there is a huge potential saving. But neither side has a clear view of the sums in issue or the arguments that are going to be used.