Ten top tips

  1. Consider the possibility of mediation regularly and keep any decision not to mediate under review.
  2. Be alive to the fact that the courts are very keen to encourage mediation. If you don’t mediate you risk being penalised.
  3. Think carefully about timing – when might be the optimum time?
  4. Remember that mediating will not stop the clock for limitation purposes – protect your position by issuing proceedings or entering into a standstill agreement.
  5. Be prepared to make the first move.
  6. Never ignore an offer to engage in mediation even if you think mediation is inappropriate. Respond promptly and in writing. Give clear and full reasons as to why mediation is not appropriate at that stage. Don’t suggest that mediation will never be appropriate in your case – keep an open mind.
  7. Be aware of tactical positioning by the other side and don’t reject mediation on your part simply because the other side appear intransigent – test their resolve.
  8. If you believe that mediation isn’t appropriate because you don’t have enough information or evidence, raise this with your opponent and look for solutions.
  9. Go in to any mediation with a clear idea of the costs that you have already incurred and likely future costs if the mediation fails. Work out what your irrecoverable costs will be even if you win any litigation. This will help you properly assess the benefits of settling sooner.
  10. Think creatively – remember that money isn’t always everything.