Dispute resolution: Mediation consideration


When should be mediation be used, and how can it settle disputes? Maurice Nichols explains.

There are said to be two certainties in life: death and taxes. For a claims handler there is one other: every claim resolves eventually.

Something will happen that opens a settlement window which, when accompanied by a mood to settle, leads to settlement.

In addition, there is a fourth certainty. Every claims manager wants his team to be proactive and drive early settlement, but waiting for a window to emerge aligned with a mood to settle hardly smacks of proactivity. In reality it is settlement drift.

Mediation can provide the tool that is needed to drive claims. Mediation is far more powerful than round table meetings because it is controlled by an independent chair, and because of the private meeting aspect.

But it is also more powerful because the courts are now more willing to penalise a party in costs if they refuse mediation, making an already effective strategy into a powerful weapon.

But what are the warning bells that should make the astute claims handler consider mediation?

"I have made my offer. It's not going to be taken. There's nothing I can do except wait for another settlement opportunity to arise."
This is not proactivity. This is drift.

"There is nothing I can do. I have tried talking to the other side but they won't accept my calls/tell me to put any increased offer in writing."
A suggestion of mediation must be dealt with, and a negative response is at their peril.

"I dislike the other side."
This dispute is turning personal and emotional. You may be taking your eye off what really matters, which is settling the claim. Let a mediator get you back to the issues.

"The person on the other side seems to dislike me."
Let a mediator bring your opponent back to the issues.

"They are keeping me in the dark."
Let a mediator flush out the issues.

"They just don't seem to understand their risk."
A mediator will put these points to them in a private confidential meeting, and test their responses. He will be sure they do understand these points.

"They keep telling me that they are sure of their case, and will win."
The mediator will reality test. He will be able to see if this is bluff, stupidity, or there is a real reason.

"They tell me their client wants his day in court."
Mediation is not 'court', but the occasion of the day and the fact that the litigants are involved in the process will serve the same purpose.

"Are they really communicating all that I say to their client?"
The litigant will hear it direct from you and reinforced by the mediator in private session.

The cases that come to mediation are the ones that have proved resistant to settlement and of those about 80% settle. Mediation is a powerful weapon which is there to be used.

Maurice Nichols, mediator, Expedite Resolution

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