Mediation often works best as an entirely voluntary process, so the carrot is better than the stick. A letter can be persuasive, but a phone discussion (or meeting) is more likely to produce a result – you can put arguments to deal with an opponent’s negative attitude towards mediation before offering to mediate. Persuasion is more difficult once the other side have said “no”. Some “carrot” phrases:
- We have used mediation with similar cases – not only have we got a good result we have also agreed costs on the day.
- I guess both our clients would like to see this claim settled. As negotiations have not resulted in settlement why don’t we mediate and see if we can reach an agreement before costs mount?
- One of us must be wrong. It might be me. Let’s mediate and see if we can work this out before a court makes a finding against one of our clients.
- We may be at odds on contrib. and quantum but as the defendant will be paying some damages and costs we offer to mediate and to pay the mediator’s fees.
- I know you are not a fan of mediation but this case is just not getting settled. What has your client to lose in giving mediation a try?
Where “no” is the answer your persuasion might need a (veiled) reference to a stick. Some approaches:
- The courts are keen to encourage mediation – see the overriding objective. What would your objections be if we sought a stay to mediate?
- The factors listed in Halsey make us think mediation is strongly indicated. Is your client running a costs risk in refusing to consider our offer?
- When completing the Allocation Questionnaire we are going to make it clear that our client wishes to mediate and that our offers to mediate have been refused. We shall ask the court to consider your client’s conduct in this respect when costs are considered.
- This case involves a Government Department: why does the Lord Chancellor’s Pledge not apply here?