OK, so they’ll be dismissive smirks in litigation departments about new-fangled early intervention mediation drifting across the Atlantic. After all, until witness statements have been exchanged who’s to know the facts or had sufficient time to digest the documents? Until clients have experienced lost employee time or paid litigators’ fees, how do they know what litigation’s really like? Surely the prospect of an expensive, embarrassing trial is the sort of incentive that encourages clients to negotiate. Timing is all. See the ball and then hit it.
When pressed, there may be some acceptance about some narrow categories of cases where early mediation might conceivably work. Perhaps where a preliminary injunction hearing has aired the crucial arguments and the court’s given an indication. Or where the clients have the best knowledge of the facts. Or they know their contracts well. Or where there are commercial relationships to repair and maintain. Or where personal relationships are important. But these cases are the exception not than the rule.
And when you talk to a client whose conflict has been resolved early, before it has turned into a full blown dispute, how do they feel? Has the quality of the outcome been diminished by not having exchanged witness statements. Or not having paid litigator fees. Or not losing employee time. Was their desire to resolve the conflict blunted by a lack of a trial date? It rather seems that informality, one off manageable costs, speed and control have improved the client’s experience and contributed to the result!