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Delivering The Offer

Insights
/ 30 June 2023

Delivering the offer …

For many people attending a mediation, it is a long day and is emotionally draining. It is also a day of fear. There are two predominant fears, for private litigants. First, will I get enough (to settle my claim and pay my lawyers and experts). Secondly, will I pay more than a court would make me. These fears are in many ways linked to the expectation of doing a deal in a day on something that might have literally consumed your life for years.

A lawyer will spend a lot of time managing these fears and the emotions that exhibit them and of course there may well be considerable personal dislike involved too. In these situations, a mediator works with the lawyers to manage their clients through a harrowing process.

The day may begin with giving the litigant an opportunity to express how they feel about the dispute and what it has cost them in stress, money and the overall well-being of themselves and others. It will often include a formal acknowledgement, though not an apology, for the stress.

Done properly, an opportunity to ‘vent’ and to acknowledge can lower the temperature around the table, but the fears about not getting enough or paying too much will always be there throughout the day.

Often this will lead a party to impulsively reject any offer out of hand. If this is likely, then bringing everyone into the room to communicate an offer runs the risk of the recipient rejecting or reacting badly before the logic of the offer is explained and before their lawyer has had a chance to discuss the offer with the recipient.

The best alternatives are either, the mediator to communicate offers in caucus rooms, or the lawyers to communicate offers outside the main room. That way the parties are not locked in by their immediate reactions to an offer.

In other situations where the parties are corporates that have ongoing commercial relationships outside of their dispute, the dynamics might involve the reverse. In these situations, it might be best for a direct client-to-client approach.