Do reality-testing, risk analysis and evaluation offer a new model for co-mediation? asks Tony Allen
There has always been debate about the extent to which mediators should evaluate the prospects of parties’ success at trial. UK parties and lawyers have instinctively responded less well to bullish interventions by mediators, perhaps reflecting the reluctance with which mediation itself has been embraced here overall.
Ever since the early days of mediation here, lawyers have frequently sought mediators with sector experience which fits with the overall habit of lawyers in English litigation of having someone with an apparently suitable reputation to whom responsibility can be passed for sorting out a problem.
Of course, lawyers who have proposed or gone along with the nomination of a mediator with their client’s knowledge and approval want that mediator to look competent in technical areas relevant to the dispute. But do they actually want the mediator to ask awkward questions of their team? Wise lawyers will welcome this, but might be tempted to think that a facilitative mediator, less inclined to ask probing
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