01 January 2018
You are then referred to a case or statute, or a learned article to prove it. This has probably stalled more mediations than any other procedural problem.
The mediator’s challenge temptation is to get into argument, and looking partisan, or antagonistic. Another approach is to try to overcome the confidence expressed by asking “what could go wrong?”, or even “so you’re saying that your client can’t lose? Are you putting that in writing?”
My favourite stand-by is the sheer uncertainty of the court process. The recent struggle over a £26,000,000 wind farm repair bill between Hojgaard and E.On shows this very clearly. If the contract was ruled by a strict liability commitment to performance, E.On won. If the professional standard of skill and care ruled, then Hojgaard won. Both sides had first class lawyers, confident in their abilities, such that they and the warring parties pushed the case first to court, then to the appeal court, then finally to the highest court in the country, the Supreme Court, with fees and risks escalating sky high along the way.
In the High Court, the judge ruled in favour of E.On; but Hojgaard appealed to the Court of Appeal, where 3 very distinguished judges ruled unanimously that Hojgaard was right. Undaunted, E.On went to the Supreme Court where 5 even more distinguished judges ruled that the Court of Appeal had got it wrong!
Result: even the officially cleverest and most experienced lawyers in the land split 6:3 on a basic contract interpretation problem. A wise client and its advisers always factors in uncertainty before walking away from a deal.