Why settlement never feels like a success

March 11, 2024
Rashmi Dubé


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Most CEOs will understand why the feeling of success will not usually come from a successful mediation. Mediation always makes all parties involved feel as if they have given away too much or didn’t ask for enough. There is no middle ground in mediation; there is only the costs, and the mental/emotional relief. If you want the satisfaction and the feeling of success, then neither mediation, nor litigation is the way forward. Litigation is a high roller game, and is sometimes an unfortunate necessity for the those that are small businesses or sole traders, particularly if they are attacking and defending against  larger corporations. Litigation relies on a heavily strategic approach, much like mediation.

Mediation can reduce the stressful and emotional toll of the burden of litigation, but there is an art to mediation. It is not just a formal method of haggling. It is a truest and most tactically enriched form of negotiation, and you are only as good as the mediator involved. 

I was recently involved in a mediation where the opposing party was being unnecessarily aggressive and provoking towards me and my client. They failed to ascertain the obvious imbalance in bargaining power, as my client was the one with the money they wanted. Sometimes you find lawyers or their clients allowing their egos to get in the way of what could be a constructive negotiation. Just like in any team sport, there is a plan – a goal you need to achieve, and there will be many game plans depending on how the other side decides to approach things.

What is on occasion misunderstood about mediation is that you can’t just turn up and allow the mediator to do all the work. No, No, No! You must prepare, prepare, prepare!

You must be armed with the evidence, your arguments, and a strong line in the sand that you will not cross, even for a penny. These factors have always worked for me. By knowing your case and persuading the mediator and the other side that your arguments cannot be challenged, but showing impartiality, always leads to greater success.

There is of course advantages to mediation. Not only can you save costs that may arise during formal proceedings, you can also reach an agreement which may not be something the Court would conventionally order. Mediation offers a form a freedom of expression. The parties can join together to resolve a dispute in a manner and medium they agree upon.

Next time you have a choice to mediate, I would strongly consider it.  

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