Determined To Make The Horse Drink

Originally appeared in the International Bar Association's

Mediation newsletter, vol. 5, no. 1, April 2009.

At least one justice of the English Court of Queen's Bench

seems determined to prove incorrect the old adage 'you can lead

a horse to water but you can't make it drink.'

The decision in James Carleton Seventh Earl of Malmesbury

and others v. Strutt and Parker, [2008] EWHC 424 (QB), was

outlined by Joe Tirado and Rebecca Wright in the September 2008

IBA Mediation Newsletter (vol. 4, no. 1, "Costs and

mediation in the English courts," page 29). The Court held

that a party's position in mediation was 'plainly

unrealistic and unreasonable'. Apparently the Court equated

taking an unreasonable position in mediation that causes the

mediation to fail with unreasonably refusing to mediate in the

first place. The Court held that taking an unreasonable position,

like unreasonably refusing to mediate, will attract cost

consequences.

I believe in mediation. I believe that almost every case can and

should be mediated at some stage. I am not opposed to mandatory

mediation – that is, requiring parties that are engaged

in court litigation to mediate. I do not consider mandatory

mediation in a publicly funded court system an unreasonable

imposition on the parties' entitlement to a fair and impartial

adjudicated outcome.

Even beyond court litigation, I believe that parties should be

encouraged in various ways to engage in mediation before and during

arbitration, and that more can and should be done in this regard by

all participants in the arbitral process.

But the role of the courts (and arbitral tribunals) should end

when the horses are at the trough – when the parties

enter the mediation room with their mediator. After that, what

happens in the mediation room should stay in the mediation

room.

Yes, some parties may take what others will consider –

viewed from a different perspective and a different time

– to be an 'unreasonable' position. Perhaps in

one party's view, taking a hard-line, so-called extreme

position is a sound approach to the negotiation. Perhaps it is.

History has good examples of the wisdom of refusing to make

concessions and of the folly of making bad concessions. The courts

should not be second-guessing what the parties do in their

mediation. There is more to be lost than to be gained.

The mediator's task is to attempt to get the parties to

reach an agreement.

Mediators are trained in techniques to try to get a party that

is taking...