Imagine the phone call from the client: “I have got your letter and that mediation fact sheet thing. I do not understand. Last week you said we had some good arguments in favour of our case. We have got lots of paperwork that supports us (well, except for the contract itself). Now you want me to rack up more costs sitting in a meeting room all day navel-gazing when I could be getting on with my business? And at the end of that, what do you suggest happens? That I split my differences with that double-crossing company and then everyone I do business with thinks I am a soft touch?!”
The client sounds like he has got a point. Litigation provides a certain, final answer. It reviews the evidence and context of a dispute and reaches a conclusion. You may need to go to the European Court of Justice and back, but at the end of it, one party wins. From a client’s perspective, it sets a precedent in two ways. Firstly, it provides certainty over an aspect of how he does business. Secondly, it sends a clear message out to those with whom he does business: “Don’t mess with me – I am not afraid to push this argument all the way”. There are companies with well-earned reputations for being aggressively litigious and whose stance cannot fail to deter potential disputants from pursuing disagreements. If you suggest mediation to your client, won’t this mean that he will lose confidence in you; that you are not sure what the legal answer is; that you have gone soft; and that you do not trust what he has told you about his case? These are serious problems in such competitive times.
