Advocacy in Mediation

This paper was originally presented to the Commercial Law Association of Australia, in Brisbane, on 24 October 2024.

Introduction

Sir Laurence Street (1926-2018), after his retirement as Chief Justice of New South Wales, became one of Australia’s most renowned mediators. In his opening remarks at mediations, he would commonly use a simple analogy to set the mood. Having seated the opposing parties on opposite sides of a boardroom table, he would place a 50 cent coin between them. The coin would be balanced on its edge, with each side facing only one of the opposing groups. This coin, he explained, represented the problem which the parties were facing. Whilst each party was looking at the same problem, their views were limited by their perspective. One party was apt to view the problem as if it were simply a “heads”, whilst their opponent may only be viewing it as a “tails”. Whilst as mediator, he had a glimpse of both sides of the coin, his viewpoint was also constrained. So the purpose of the mediation, he said, was to give all parties an opportunity, metaphorically speaking, to pick up the coin and examine it from all angles. Having then obtained a similar understanding of the problem, the parties should be in a much better position to work out how it could fairly be resolved.

These remarks are instructive for two reasons.

First, they provide a neat illustration of the style of advocacy which works well in a mediation. These remarks, of course, came from the mediator. But their purpose was to find a way to persuade all parties to be open and constructive. They achieved this purpose not by lecturing the parties about the need for co-operation, nor by threats or bluster. Rather, the mediator used a simple, charming and effective analogy, the good sense of which could be understood by everyone in the room, whether lawyer or lay person.

Secondly, these remarks help to explain one of the key purposes of advocacy in a mediation.

In many mediations, the dispute will arise from a set of circumstances which are known to both parties. There may be a common set of pleadings, primary documents, filed witness statements, and expert reports. Similarly, the legal issues will be governed by a common set of statutes, caselaw and commentary. These materials, taken together, may not point to a single correct analysis of the issues. However, in theory at least, they should lead all parties to identify a similar range of possible outcomes and form a similar view of the risks involved. Once that point is reached, it should be a relatively short step to negotiate a reasonable settlement sum, which reflects the risk-weighted value of the claims.

Accordingly, in cases of this kind, it is sometimes said that there is no point in having position papers, opening statements or other forms of advocacy at the mediation. It is said that these steps are costly; that they are apt to drive the parties further apart; and that they are unnecessary, because the parties already understand the issues and already have their own views about prospects. It is said that the parties should simply start the process of making offers and counteroffers, with a view to finding terms which are acceptable to both.

In some cases, particularly where the issues are not complex, such an advocacy-free approach to mediation can work well.

In practice, however, complex mediations which are conducted on this basis commonly fail. The parties may be looking at the same materials and have the benefit of legal advice. However, they often discover, from the substantial gulf between their offers and counter-offers, that they have each analysed these materials in a fundamentally different way. In short, each has convinced themselves that they have the better case. The difficulty then becomes that, in an advocacy-free mediation, there is no appropriate framework in place to allow these fundamental differences to be identified and explored. So an impasse tends to arise.

There are many reasons why differences of this kind arise. They may arise from information asymmetry, because there are critical aspects of the matter which are only known or appreciated by one party (eg a flaw in the credibility of a key witness). They may arise from differences in preparation, because one party has made a more thorough or more reliable study of the factual and legal issues than the other. They may arise from perspective bias, because the materials are not being considered objectively, but only through the lens of one party’s viewpoint. They may arise because the parties have a fundamentally different risk tolerance, which leads one party to be more attracted to a litigated outcome than the other.

All of these differences are capable of being overcome, if the mediation has a structure in place to allow these differences to be identified, analysed and discussed.

A key purpose of advocacy, in mediations, is to create such a structure. Good advocacy involves each party providing to the other cogent reasons why they would both be better off settling the matter on particular terms, rather than proceeding to a judicial determination. Advocacy of this kind helps to create a framework of analysis, which allows each party to identify and understand why they are viewing any relevant factor in the matter differently. It thus creates a path towards finding common ground. When presented in a measured and constructive way, advocacy of this kind is apt to promote a constructive approach in which each party sees the mutual value of compromise.

As with all advocacy, there is no single approach to mediations which represents good practice. That is because mediations can be so very different.

Some mediations, for example, are designed to be quick, informal and inexpensive. Others are only convened after all other attempts at settlement have failed – and are designed to allow the parties to work methodically through their differences.

Some mediations are focussed entirely on the legal merits of a claim. They seek to identify the range of realistic outcomes of the matter, the probability of those outcomes, and a reasonable basis upon which these claims could be resolved. Other mediations are more focussed on collateral issues, including the future commercial relationship of the parties.

In some mediations, the parties are content to seek a fair and reasonable resolution of the dispute. In others, one or more of the parties are prepared to act brutally, with a view to maximising the commercial leverage they hold over their opponent.

Advocacy, in these very different contexts, necessarily involves different approaches.

However, they are some core principles which can be applied in most contexts, with variations as the circumstances require.

To explain these principles and their rationale, it is helpful to focus on a mediation base case – a simple category of mediation, which is relatively free from complication. For present purposes, the base case may be described as having six main characteristics. First, it is a matter which only involves two parties who are in a dispute of a monetary kind. Secondly, it is a matter in which the mediating parties are faced with a binary choice, between having their dispute resolved judicially or being resolved by some agreed compromise. Thirdly, it is a matter in which each of the parties has a reasonably arguable basis to contend for different outcomes. Fourthly, it is a matter in which each party would prefer to reach a reasonable compromise, if that were possible. Fifthly, it is a matter in which prior attempts to reach a quick and low-cost compromise have failed. Sixthly, it is a matter in which each party is prepared to engage in a constructive discussion, with each other and their preferred mediator, with a view to resolving these differences.

Decisions to Compromise and the Influence of Advocacy

To understand the principles to be applied in the conduct of a mediation of this kind, it is critical to understand the process by which decisions to compromise are typically made – and the influence which advocacy can have on this process.

Decisions to compromise are personal decisions. They are decisions which are made by one or more specific individuals, for reasons which reflect the factors and values which are subjectively important to them. Whether the party to proceedings is a natural person, a corporation, or an arm of government, the key point is that there will always be one or more specific individuals who will actually make the decision – and their approach may vary significantly.

For some decision-makers, the decision-making process will be reasonably rigid and based upon parameters which are rational and economic. A paradigm of this kind of decision-making is in situations where an insurer has the conduct of a case being brought against insured defendants. The practice, in many cases of this kind, is for the insurer to seek formal legal advice about the likely outcome of the litigation. This advice is critical, because it is used by the insurer to set an appropriate reserve for its contingent liability. A designated officer of the insurer may then have formal authority to settle the matter, up to the amount of that reserve. However, the officer will be expected to use their discretion, to seek to settle the matter for the lowest feasible amount. In the exercise of this discretion, key factors may be: (a) an assessment that, unless compromised, the plaintiff is likely to take the matter to trial; (b) an assessment that a particular offer made by the plaintiff is the lowest amount they are ever likely to accept; and (c) an assessment that the legal advice, which underpinned the reserve, remains valid and reliable. However, this decision- making process is unlikely to be affected by matters which are personal to the insured defendant (eg any damage to their reputation which might arise if the matter proceeds to trial). Indeed, if allegations of fraud or deliberate wrongdoing are made against the defendant, they may provide a basis for insurance cover to be declined.

For other decision-makers, the decision-making process may be very much more intuitive and subjective. A paradigm of this kind of decision-making is the position of a very wealthy individual, who is involved in litigation of a personal character. By reason of their wealth, the cost of either contesting or compromising a matter may be immaterial. Indeed, their decision-making may not be particularly influenced by legal advice about prospects. However, they may be very concerned to pursue issues of principle or perceived slights. For such individuals, a feeling of personal vindication (eg by receiving a genuine apology) may be more important than any other factor, when considering a settlement proposal.

Even in cases where the decision-making process is quite intuitive and subjective, it commonly involves the following key steps:

1. developing some understanding of what is likely to happen if the matter proceeds to a judicial determination, including the range of possible outcomes, the likelihood of those outcomes, and the net financial benefit or cost of those different outcomes.
2. considering the key terms of any proposal to compromise the dispute, including the feasibility of that proposal, and net financial benefit or cost involved.
3. considering the likelihood of a better compromise proposal emerging in future.
4. considering the likelihood of the litigation otherwise failing to proceed in future.
5. undertaking some comparison of the merits, costs and risks of all these alternatives, having regard to all factors and values which are subjectively important to the decision- maker, and any advice or guidance which is considered material.

In considering these issues, the key factors generally include the following.

First, there is the intrinsic legal merit and value of the claims being advanced. This is commonly analysed by considering matters such as: (a) whether the claim falls within an established category of case or has novel features; (b) whether the claimant has witnesses or other evidence available to prove their case; (c) the inherent credibility of that evidence, having regard to any available evidence to the contrary; (d) the merits of any defence (eg limitation periods); (e) the likely quantum of recovery if the claim is successful, including interest and costs; (f) the potential for appeal proceedings in the matter; and (g) any risks of actually recovering the amount of any judgment, when the proceedings are finally concluded. Drawing upon these considerations, it is usually possible to identify the most probable potential outcomes of the matter, after allowing for unrecoverable costs. By way of example, in an evenly balanced matter, the analysis may suggest that for the claimant there is: (a) a 50% probability of recovering a net amount (after allowing for unrecoverable costs) of $1 million; and (b) a 50% probability of losing the matter and incurring a costs liability (for both parties) of $200,000. On this analysis, a risk-weighted value of the claim, to the claimant, may be in the order of $400,000 ($1,000,000 x 50% less $200,000 x 50%).

Secondly, there is usually consideration of any other benefits or costs of proceeding with the litigation. The benefits may include obtaining certainty about an issue of wider importance. The costs commonly include the opportunity costs of diverting time and resources to the litigation, rather than to other pursuits. They may also include the personal or financial stress of the litigation, the risk to personal or commercial reputation, and the risk to valuable commercial relationships.

Thirdly, there is the intrinsic value and feasibility of the compromise being proposed – and the extent to which it reflects the intrinsic legal merit and value of the claim being advanced.

Fourthly, there is usually consideration of any other benefits or costs of the compromise being proposed and their value. Some of these benefits may simply involve neutralising the risks of the litigation (eg avoiding reputation risk). However, there may be benefits obtained through negotiation which could not otherwise be obtained (eg a more certain contractual basis for dealing with the other side in future). Similarly, there may be collateral costs of the proposed compromise to be considered which arise only through the proposed compromise (eg an agreement not to engage in particular conduct in future).

Fifthly, there is a commonly a proportionality issue involved. The conduct of litigation can be viewed as an investment of funds, with a view to obtaining a sufficient benefit to justify the outlay.

So an issue which commonly arises is whether an investment of further time and costs in the litigation is sensible and proportionate, having regard to the potential benefits and risks involved. This issue becomes particularly acute when the parties are close to compromise, and the real question then becomes whether the further investment is justified to obtain a marginal benefit.

Sixthly, there is commonly an assessment required of the competence, financial standing and resolve of the opponent. The competence issue relates to the likelihood that the litigation will be conducted quickly and successfully. The financial standing issue relates to the likelihood that the opponent will be in a position to continue with the litigation. The resolve issue concerns the issue of whether the opponent has truly provided their best offer and has otherwise resolved to proceed to trial.

Seventhly, there is commonly an assessment required of the competence and reliability of a party’s own professional advisers and witnesses. In the context of a mediation, parties typically take account of the guidance and advice given by their legal advisers and experts – including advice about prospects. Their confidence in the reliability of that advice – and the capability of the entire group of lawyers and witnesses to take the matter to a successful conclusion – is often a key factor in the decision-making.

Eighthly, there are commonly a range of personal factors involved. These factors include the extent to which a party is risk-adverse or prepared to embrace risk. They include issues of personal pride – or the need to maintain family harmony. They include any personal animosity toward their opponent or their opponent’s lawyers.

Having outlined the way that decisions to compromise are made, the next question to consider is how advocacy in a mediation can influence that decision-making.

Advocacy may be broadly defined as anything said or done (or not said or done) which seeks to promote a decision, by the opposing decision-maker, to accept a compromise proposal.

So there is scope for advocacy to provide cogent inputs in relation to every relevant factor in an opponent’s decision-making process.

The key challenge, in a mediation, is that the opposing decision-maker may well be distrustful or even hostile to any presentation or proposal advanced by their opponent.

For this reason, advocacy in a mediation is usually more effective if it takes a respectful, constructive and understated tone. In general, it is unproductive to seek to lecture, threaten, or demean an opponent or their case. It is usually more productive to: (a) demonstrate a shared interest in solving a common problem; (b) demonstrate a willingness to work together to find a reasonable solution to the problem; (c) provide new information and perspectives which may lead this particular opponent (and their lawyers) to reconsider their position; (d) provide the mediator with the information required to allow him or her to privately test the merits of an opponent’s grounds for resistance to the proposed compromise; (e) provide an opponent (and their lawyers) with a dignified way to step back from any previous position; and (f) thereby enable the opponent to reach its own conclusion that the best option for them is to accept the proposed compromise.

In broad terms, the aim is to first create an environment which is conducive to a constructive and co-operative approach to resolving the dispute. It is then to take steps to introduce, into the opponent’s decision-making process, the key points which are likely, in the case of these particular decision-makers, to lead them to conclude that they would be better served to accept the proposed compromise than continue with the litigation.

The next issue to consider is how to convert these aspirations into a workable strategy in a base case mediation.

Developing a Mediation Strategy

A common mistake in mediation is to proceed without any apparent strategy. It is surprisingly common for mediations to be convened: (a) without a party having undertaken any detailed analysis of the competing merits of the claim; (b) without any thought being given to the full range of possible models for settlement; (c) with only perfunctory position papers and opening statements being prepared; (d) with no apparent bidding strategy to try to reach an acceptable outcome; and (e) with no strategy to deal with impasses which arise in the negotiations. In effect, there is only a Micawber plan – to start the process and hope that “something will then turn up”.

Mediations are more likely to be successful if the parties are well prepared and seek to proceed pursuant to a thoughtful, but flexible, strategy.

As a first step, it is necessary to devote some time to analysing the intrinsic legal merit and value of the claims in dispute. The most obvious reason for doing so is to allow a reasonable settlement range to be estimated. In most cases, it will not be possible to identify a single probable outcome of the matter. There will usually be a range of possible outcomes, both favourable and unfavourable. There is also a need for flexibility, because new information about the matter is likely to emerge, including during the mediation. However, the task is simply to use all available information to identify a range of probable outcomes and place a risk-weighted value on the claim as a whole. The value is usually expressed as a range, and in most matters, this range provides the bottom-line figure for negotiations. This is a figure which is not ordinarily disclosed (even to the mediator), unless there is a strategic reason for doing so.

In analysing the merits, there is a second important purpose involved. This is to seek to predict the key issues upon which an opponent, at the mediation, may take a strongly divergent view. A simple example of this is a limitation defence. It is common for mediations to fail, because parties take fundamentally different views about the viability of such a defence. Points of this kind require additional preparation, with a view to finding a persuasive reasons to advance at the mediation to cause an opponent to reconsider their views. In the example of a limitation defence, the obvious work to be undertaken is to look for a closely analogous authority. If there is such an authority, which an opponent has not found, it could change their perception of the case. The task involves focusing upon identifying matters which an opponent may not know, or may have misunderstood, and which may have led them to a different analysis of the matter.

Secondly, it is necessary to consider the full range of possible models for the settlement of the matter. In many matters, there will be no real options available. The only possible model will involve a payment of money, in exchange for an appropriate release, and the discontinuance of the proceedings. In other cases, however, the dispute may arise in the context of a wider relationship between the parties. For example, the dispute may concern a single supply of goods in the course of a longer-term commercial relationship between the parties. In this case, the supplier may not be attracted to paying a large lump-sum to settle the dispute, but will be happy to renegotiate a new long-term agreement on more favourable terms. The task involves considering whether either party would be more attracted to a model of this kind, because the provision of benefits collaterally is more attractive than simply paying money.

Thirdly, it is necessary to seek to identify the decision-maker on the other side and consider the interests, values and factors which are likely to be material to their approach. The task is to consider the dispute from their perspective and the kind of approach they will be taking to evaluate any settlement proposal. The question then becomes what information, perspectives or proposals can be provided, which are likely to favourably influence their consideration of the matter. A related question is whether it is important that the decision-maker actually be present at the mediation, to maximise the chances of a successful outcome.

Fourthly, these factors are all relevant to the arrangements to be made for the mediation. Given the expected points of difference, the questions to be considered are: (a) whether the matter is ripe for mediation, or whether it is more likely to be productive only after further steps are taken (eg disclosure); (b) which individuals, from either side, are likely to have sufficient rapport and credibility to work through these differences and will need to be present (eg client representatives, solicitors, barristers, or experts); (c) what kind of mediator is most appropriate to assist the parties in working through these differences (eg an interventionist mediator, a mediator with specialised subject matter skills etc); and (d) what process is required to work through these points of difference (eg use of position papers, extended openings etc).

Fifthly, it is important to settle in advance the broader strategy for the conduct of the mediation. The strategy usually begins by identifying the general form of compromise which is proposed. The task is then to consider what logical steps should be taken, in the mediation, to persuade an opponent that this form of compromise is reasonable and appropriate. Ideally, these steps would convey a consistent message. The message begins in a structured way in the position paper. It can then be developed in the opening session. The logic of the approach should then follow into an opening offer. Then subsequent offers can consistently signal the viable settlement range. Potential points of impasse should be considered, with thought given to how they may be overcome.

This strategy requires a measure of flexibility, to deal with new information which comes to light during the course of the mediation and to allow for the possibility that further compromise will be required to reach middle ground.

Carrying the Strategy into Effect

In carrying out a mediation strategy, a number of key issues commonly arise.

The first issue concerns the timing of the mediation, and the related question of how the topic of mediation can be raised by a party, without appearing overly anxious to try to settle the matter.

Plainly, mediations should be held at the earliest time when they have a real chance of success. In early mediations, the focus can be on funding a compromise of the claim – without the available funds being diverted to reimburse a claimant for substantial legal costs. Further, the prospect of saving future costs becomes a powerful incentive for both parties to compromise. The difficulty is that, in some cases, decision-makers feel unable to make hard decisions until further steps have been taken in the proceedings (eg disclosure, expert reports etc). The role of advocacy, in relation to procedural issues of this kind, is to persuade such decision-maker that there is a fast-track way of providing them with sufficient information to engage in an early mediation.

The related issue, of how to propose mediation, also involves an element of advocacy. Rather than one party simply proposing mediation to the other, many parties raise the issue as part of a wider discussion of court directions. Mediation tends to mentioned as just another routine step to be taken – with an opponent being asked to suggest when it would best fit into the proposed directions. On this approach, neither party signals to the other that they are overly anxious to settle.

The second issue concerns the choice of mediators. The choice of mediators is particularly significant, if there is a concern that the parties are viewing the matter very differently. In cases of this kind, a mediator with expertise in the relevant area, may be in a position to help the parties understand why this difference has arisen and suggest factors which may lead them to reconsider their position. Paradoxically, in a situation of this kind, the most effective mediator may be the person who is the preferred choice of an opponent. That is because there is a greater level of trust of the mediator, in the opponent’s camp, which may give the mediator’s interventions greater force.

The third issue concerns the role of position papers and mediation briefs.

At the very least, the purpose of a position paper is to efficiently inform the mediator about the main issues and contentions in the matter. This has the potential to give a party’s advocacy greater impact, as it equips the mediator to privately ensure that the force of the point is appreciated by an opposing party.

However, the main purpose of a position paper is to give an opponent cogent reasons to think about the issues in dispute in the way advocated – and rethink their previous approach. As the position paper is given in advance of the mediation, it also gives an opponent time to think seriously about the matters raised – investigate them further if necessary – and update any legal advice which has been given. For the reasons outlined above, the points made in a position paper should focus on points that are likely to be material to the particular decision-maker involved in the matter. They should also focus on points which may not be already known or appreciated by the decision-maker – and which may thus be a cause of differences between the parties. For example, if the dispute turns on a legal point, then the position paper should point to the authorities which support the contention made. If the dispute turns on a factual point, then the position paper should analyse the known evidence which corroborates – or tends to undermine – the relevant facts. In some cases, it may also be appropriate to disclose new evidence to seek to change an opponent’s perception of the matter. To maintain credibility, the position paper should seek to downplay claims which have little intrinsic merit (eg quantum claims for lost opportunities which are overly optimistic). The position paper should not be lengthy. It should be structured and pointed. The position paper should not contain threats or bluster. It should be respectful and understated in tone. It should give an opponent the information needed to come to a similar view of the matter. It should also leave an opponent with the impression that they are facing a competent, well-prepared and formidable adversary.

Mediation briefs should include any document which either side wishes to have included. But their purpose, as an advocacy tool, is to draw attention to key documents which tend to support or explain a party’ case. For example, in a dispute which turns on the proper construction of a contract, the contract should be included. In a matter which turns on a disputed fact, the documents which tend to corroborate – or tend to undermine – the point should be included.

The fourth issue concerns confidential, pre-mediation meetings with the mediator. In general, these meetings are useful. Their purpose is to assist the mediator in understanding the issues in dispute – and possible models of settlement. Ideally, in discussing the issues, the mediator will be left with an understanding of the force of the main points made by that party – and that the party is taking a reasonable approach.

The fifth issue concerns the joint opening session. As a general rule, this is an important opportunity to explain in more detail the force of the points made in the position paper. For example, documents which are adverse to a party can have a more damning effect when examined in detail in a joint opening session. In some cases, points which cannot be effectively dealt with in a position paper, can be conveyed more persuasively by a video or physical demonstration. For example, where a case concerns the effects of flooding, the events of the day – as gathered from numerous cameras, flood gauges and data sources – can be very effectively gathered together in a PowerPoint presentation which clearly explains the course of relevant events. As with the position paper, the general tone of such presentations should be reasonable and respectful. Such an approach is more likely to result in the opposing decision- maker listening carefully to the points made and taking account of their force.

The sixth issue concerns the transition from opening session to offers. To maintain a party’s credibility, it is desirable that an opening offer flow naturally from the joint opening session. Accordingly, unless a party contends that there are no reasonably arguable contentions to the contrary, it is difficult to make an opening offer which makes no allowance for the risk that those views might be accepted.

The seventh issue concerns the bidding strategy. Ideally, the bidding strategy is one which reflects and corroborates the contentions advocated in the mediation. A bidding strategy which fails to do so, tends to flag a lack of confidence in the position advanced or an undisclosed need to settle the matter. Accordingly, a measured and reasonable opening allows a party greater flexibility to find common ground. By contrast, a more strident opening, makes it difficult to make subsequent offers which fall outside this range, without losing credibility and conveying some level of anxiety.

The eighth issue concerns the question of deadlocks. In many mediations, the exchange of offers and counteroffers will come to an end at a point when a substantial gulf still exists between the position of the parties. This is the point at which the earlier advocacy of the parties may assist in bridging the gulf. With the assistance of the mediator, the lawyers should be in a position to rationally explain why they are assessing the risks of the matter so differently. This may result in one party being persuaded to moderate their views. Alternatively, it may result in both parties understanding the force of the other’s viewpoint, and become open to a gap-filling approach. This may involve a solution as crude as simply splitting the difference between their positions. Alternatively, it may result in a mediator’s offer, which suggests another number which he or she regards as an acceptable compromise. Whilst measures of this kind may not be accepted on the day of the mediation, they commonly lead to a later resolution of the matter.

Finally, there is the settlement agreement itself. Having persuaded the parties to accept a compromise proposal in principle, it is highly desirable to move quickly to a binding agreement. It is good practice for parties to attend a mediation with a draft settlement agreement, which can be quickly adapted to the circumstances.

Some Pitfalls

Whilst advocacy in a mediation involves many matters of judgment and personal style, there are some things which should be avoided.

First, it is critical that mediations are conducted lawfully and ethically. Apart from the adverse consequences for the individuals who depart from this standard, any acts of apparent misconduct is apt to put any settlement agreement at risk of further litigation. In short, advocacy does not provide a licence to misstate or mislead.

Secondly, whilst a mediation is a confidential process which is conducted on a without prejudice basis, an opposing party will not forget what they learn at a mediation. Indeed, they may well be able to use damaging information to direct the further conduct of the matter. Accordingly, it is important to maintain control of the information which is disclosed in the process. Ordinarily, it is undesirable to permit a witness to be questioned by an opponent.

Thirdly, it is very damaging to a party’s prospects of settlement if their opponent comes to the view (even wrongly) that the party: (a) cannot afford to take the matter to trial; (b) is not prepared to take the matter to trial; or (c) has lawyers who are insufficiently capable to take the matter to trial in a potent and effective way. The mediation should be conducted in a way which avoids any such judgment being made.

Fourthly, if a defendant is insured, it is important to avoid advancing a case against the defendant which might cause the insurer to decline indemnity. Typically, defendants are not insured against their own fraud or deliberate wrongdoing. Allegations of this kind should be avoided.

Fifthly, for some parties, aggressive or disrespectful conduct by an opponent is not forgiven and brings to an end any prospect of settlement. It is an approach which must only be adopted with caution.