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Regulars
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Written by Matthew Rushton
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Monday, 03 December 2007 00:00 |
 LOGICALLY ENOUGH, mediation is constantly benchmarked against litigation. And, naturally, such comparisons tend to flatter mediation. The comforting, familiar mantra about mediation delivering cost and time savings and keeping parties in control of their own destiny is, of course, equally true of negotiated settlements.
And negotiators are everywhere. The recent [new=18]Herbert Smith audit[/new] corroborates findings from the November 2007 [art=23]issue of <i>The Mediator</i>[/art] that a substantial core potential users regard mediation as a formalised process only to be attempted when negotiation has failed. This group is largely persuaded of the demerits of litigation but concerned that willingness to mediate at an early stage will be interpreted as weakness by the opposing side.
These 'negotiators' are mediation's floating voters. They comprise roughly one third of Herbert Smith's blue-chip sample, but among non-blue chips, reason suggests they are a hefty majority. One doesn't need to be Peter Mandelson to work out that a mediation landslide is within reach if the negotiators can be targeted effectively.
But why go to the trouble and expense of mediating when you can grind it out around the negotiating table? Toughing it out around the table is always an option, but to do so as a preferred option to mediation is to overlook the purpose of mediation and the mediator's role. Negotiation all too easily hits the wall when neither side is willing to reveal its ultimate hand. With a mediator present as an independent, however, each side is able to be more candid, confident that the mediator will respect their confidence and help them towards a settlement.
Is candour so desirable in negotiation? It's a choice between honesty, transparency and directness on the one hand and obfuscation, ignorance and deception on the other. Of course there's a lot of fun to be had in the dark, but perhaps that would be mixing business with pleasure.
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Rushton Roars 
