Don’t Use the F Word in My Mediations

As I always say to parties at the start of all of my mediations, one of the golden rules of mediation is that each side must move towards each other. What happens, however, if you get to the point where one, or perhaps both, of the parties gives the impression that they are not prepared to move any further?  In some mediations, at least, part of my role is to try to avoid anyone using the “F” word in relation to any offers they make, i.e. “Final”.

In mediations, as with lots of other things in life, the parties should generally “say what they mean and mean what they say”. The difficulty with either side using the “F” word is that there is potentially no way back without the loss of another “F” word: “Face”.

If you make a so-called “final” offer, and then demonstrate that you are, in fact, prepared to continue to negotiate, how can the other side take anything you say seriously in relation to your subsequent offer, if that is also said to be “final”?  When is a final offer genuinely your last word.

For the lawyers involved, however, the situation is potentially more problematic. They may well come up against the same lawyers or the mediator in a future negotiation/mediation and may fear that their credibility has been undermined.

In the early stages of a mediation, one hopes that neither side is minded to make a “final” offer. As the day continues and parties get tired and perhaps want to go home, there is perhaps an understandable desire to try to draw a “line in the sand”.  I always try to encourage parties not to make a “final” offer for as long as possible.  Instead, I suggest that they should keep an open mind because it is always possible that some new information or documentation will come from the other side which gives the recipient of the information a further reason to move.

What happens, however, if, despite the mediator’s best endeavours, the air is turned blue with the use of the “F” word? In one of my mediations, where an initial gap of hundreds of thousands of pounds had been reduced to just £5,000, both counsel had said to me that their last offers were “final”.  “Flip” I thought.  Appreciating that it would be difficult for either party to move from that position without losing face, I asked both counsel to see me together without the parties present.  Having congratulated them on the progress they had made in terms of bridging the significant gap during the course of the day, I suggested that they both go back to their respective clients and say that the mediator was recommending that they both move towards each other by £2,500, which they duly did.

If you are wondering whether I managed to restrain myself from using an expletive in relation to my delight that the parties had been able to settle their differences by mediation, I did, and that is my final word on the subject! Or is it?

Speak to our Family Disputes Team

Paul Grimwood is a Partner in the family dispute team at IBB Law and as such is able to provide advice if you find yourself in this situation.  Contact Paul on paul.grimwood@ibblaw.co.uk or call 01494 790047.