Even if you don’t settle on the day, mediation always brings parties closer to a final outcome.
Not settling on the day is not necessarily the end of the world
Sometimes mediation does not result in a settlement on the day. There may be a particularly difficult issue that the parties fail to overcome. Or, one party may make an offer or a statement to which the other takes objection. This does not necessarily mean that the process has been futile, particularly if, during the mediation, some elements of the dispute have been resolved.
One case I dealt with, related to a dispute between a supplier of point of service (POS) equipment and one of its customers. The customer alleged that equipment it had been supplied with was not fit for purpose and claimed a refund. Court proceedings were issued against the supplier.
In the customer’s claim form, it had been alleged that a handheld piece of equipment should be returned and a refund provided for that as well.
At the mediation, the supplier made an offer to pay money to the customer, in order to settle the case. That offer was rejected and a counter-offer was tabled by the customer. The supplier found the counter-offer to be out of the ‘ball park’ and, from that point, it gradually became clear that a settlement would not be achievable there and then.
However, before both parties departed our premises, a joint session was held between them, during which, they took turns to talk about their positions and what they felt a reasonable settlement should look like.
It was also tacitly accepted that the customer’s claim, regarding the handheld unit, could be resolved by replacement equipment being provided.
Although there was no settlement, clearly, the mediation had led to the parties narrowing down their issues and points of focus. Indeed, within the next week, the parties’ lawyers were able to agree a deal, which involved the customer receiving a sum of money, as a partial refund. I am convinced that the case would have lasted longer, resulting in further expense to both parties, if the mediation had not taken place at all.
The author: John Appleby
