Extended Joint Meetings during a mediation can be surprisingly productive. Ask for one.
It is all too easy to let the mediation day become a succession of caucus meetings, with clients often feeling disengaged and bored. Often, parties want to talk to each other about their grievances and a mediator can turn points of argument into a constructive agenda, changing the atmosphere in the room and moving the parties towards settlement.
Remember that there are other ADR tools you can use as part of the mediation process; e.g. expert determination on a point of law/fact.
Parties often expect to conclude a mediation on the day or very soon after. Failure to reach agreement may mean that the parties will have to wait for a long time before obtaining a judicial decision. In cases where progress has been made in the mediation but there is a sticking point, it is worth considering a quick expert determination to resolve outstanding points, e.g. in the construction of a contract. Consideration would have to be given to the expert’s terms of appointment and as to whether or not the mediator should be that expert – probably not. A typical example is a claim for an account, where the legal process is very lengthy and the costs are prohibitively expensive.
An early mediation avoids later legal costs. If it does not work, you can always try again later.
Although it is true that mediation may be premature because the issues are not sufficiently defined, this is rarely the case in practice. Also, we all know the difficulties in settling a case once substantial costs have been incurred. Quite apart from court rules concerning pre-action ADR, normal commercial considerations favour an early attempt at mediation. For the sake of what will usually be a comparatively small outlay, an early mediation gives them a fighting chance of avoiding subsequent legal costs and the commercial advantage of an early settlement.
If an early mediation is not successful, it often leads to clarification of the real issues in dispute and leads to settlement. If it fails entirely, the parties can try again later. In appropriate circumstances, contractual provision may be made to recover mediation costs from the other party.