Covid-19 has had a major impact on the tribunal and court systems in recent months.

There is now a claims backlog in both systems and alternative dispute resolution may be viewed as a more popular and viable option for claims. With that in mind, David Morgan provides his top ten tips on mediation.

1. Mediation works

Statistics consistently show that 70-80% of cases settle at mediation or within the next two weeks.

2. Virtual mediation works

Don’t let lockdown or working from home put you off mediation.  Online platforms like Zoom are ideally placed for mediation. Early experience shows that online mediation can be just as powerful and effective.  The break-out room function makes for an authentic experience for parties and mediator alike.

3. Workplace disputes lend themselves particularly well to mediation

Do grievance procedures really resolve problems at work?  Or do they polarise positions even more, with an adversarial ‘reject’ or ‘uphold’ mentality.  Mediation can cut through a toxic grievance and get a result, with all parties ultimately in control of the outcome.

4. The mediator is not a judge or decision-maker.

They are there to help facilitate the negotiation.  Trust your mediator – you can use them as a sounding board in confidence. They are there to help, not to judge or decide your case.

5. Keep an open mind going in to mediation.

Think differently than you would in litigation.  Ask yourself – “what would success look like and what do I really need to achieve to resolve this dispute?”

6. Put yourself in the other side’s shoes

“what would success look like to the other side and what do they really need to hear from me to resolve this dispute?”

7. Prepare thoroughly in advance of mediation. It is not a soft option.

Potentially years of evidence can be distilled down to a single day of mediation, saving days in court or Employment Tribunal. It’s just as important (if not more) to know your case and be ready to answer questions.

8. Don’t be afraid to make the first offer!

So much time can be taken up by parties arguing over who makes the first move. In fact, there can be a first mover advantage through ‘anchoring’ the negotiation to your first offer. Research shows that the party making the first offer in a negotiation is often happier with the final settlement reached.

9. Don’t leave it to the lawyers to do all the talking.

The voice of the parties is much more powerful in mediation.  The process is private and confidential, but the impact of speaking up (or getting things off your chest by “venting”) can really make the day.

10. George Bernard Shaw said: “The single biggest problem in communication is the illusion that it has taken place.”

Disputes and differences so often arise because of miscommunication, or no communication at all.  It’s good to talk and mediation provides a safe space for this dialogue. Think about what you might say in advance.  Better still, think about what your opponent needs to hear.

David has put our name to this “Call to Action”, along with other business leaders, making the case for mediation in the time of COVID-19.

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