Adopting the right approach to mediating legal disputes is vital, says Michael King
As counsel, my experience of mediation has been gained both as mediator and mediated. Nearly all the mediations have involved litigation relating to trusts, wills, estates, professional negligence, and partnership. Proceedings have either been commenced, or have been imminent, and the parties have generally been represented by experienced solicitors and counsel.
In such mediations one question often arises: what approach should the mediator adopt when there are no other interests of the parties that could assist in effecting a compromise and the only possible means of reaching agreement involves a settlement of the issue(s) raised in the proceedings?
Approach of the mediator—evaluative or facilitative?
I shall assume that the mediation is attended by the parties with a genuine desire to compromise. Unfortunately there are a few mediations where one or other party has no such desire or where one or more of the lawyers present is so inflexible that the mediation is effectively doomed from the outset, but
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