What happens if a mediation ends without a settlement? I am a strong believer in the idea that there is (almost) no such thing as a failed mediation. Even when a settlement can’t be found on the day, it can help identify ideas which could later lead to settlement, or narrow the issues between the parties. In my blog for Spears (published on 16th July 2020), I wanted to explore the idea that parties can try mediation again at a later date, with a greater chance of finding a resolution. The case between two English footballers’ wives (Coleen Rooney and Rebekah Vardy) is, I think, a perfect example of one where parties could have everything to gain, and nothing to lose, from re-mediating. The original text can be found here https://www.spearswms.com/coleen-rebekah-mediation-spears/.

Handbags at dawn! News that Rebekah Vardy is to sue Coleen Rooney for libel has electrified the gossip columns, short of material during lockdown.  If you’ve overlooked this until now, the story focuses on Coleen’s allegation that her close friend Rebekah’s Instagram account was the source of disclosures to The Sun about posts on Coleen’s private Instagram account.

Media reports suggest that the two parties have attempted mediation in recent weeks, without success.  Whether that’s true or not, mediators everywhere will be thinking the same thing – never give up.

There’s almost no such thing as a failed mediation.  Parties may come into a mediation with little real hope of settling, or with defiant statements about their intentions, and still find a settlement they can agree.  Even if they leave without a complete settlement, they will have learnt more about one another, and may look at their own case with fresh eyes. All of this can help to narrow the issues to the point where a further mediation at a later date can succeed.

But, after one round of mediation, the parties may emerge with a renewed sense of determination. Litigation can often appear like a game of poker, with parties taking a firm stance sometimes based as much in psychology as on the facts. One or both sides may feel a strong wish to be proved right, in public, by a judge.  And then how do you persuade them to get back round the table?

Let’s take Coleen’s statement that she has ‘millions to spend’ on fighting the case.  It’s true that wealthy parties may not be swayed by the factors that usually encourage people to settle.  Generally, parties weigh up the cold reality of legal costs against the uncertainty of litigation, but this may have less impact for a party with deep pockets and a matter of personal reputation to resolve. But it doesn’t mean mediation has nothing to offer; they could spend the money elsewhere, if not on lawyers.

On the other hand, Rebekah has repeatedly said that she wants nothing less than a full, public apology and to clear her name ‘at any cost’.  Mediation in the face of a very clear aim – particularly when it is a reputational issue – might look like a mountain to climb, but it need not be. A skilled mediator will always find a way to help parties explore what they really want, and the many different ways to find an outcome that feels acceptable.

Dislike of publicity can persuade parties to negotiate in private, rather than continue their disagreement in the public gaze – particularly wealthy individuals.  But these two ladies are already very public figures, and their dispute relates to press coverage of private matters, so they may feel they have little to lose from media scrutiny of their case. Nonetheless, as the weeks pass and ever more details become public, they may see advantages to avoiding yet more intrusive commentary.

Litigation can be all-consuming; imagine how it might feel to any litigant if they could stop that process. Here’s wishing Coleen and Rebekah good luck, should they decide to try mediation again.

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Arabella Murphy