Mediation – A clash of strategies

20 October 2025

By Andrew Murphy & Neil Stewart, Associate Directors at Manolete Partners.

This article was produced in collaboration with Manolete Partners to provide expert insight on mediation strategies.

Mediation plays a central role in insolvency litigation - with most cases settling before trial. But what makes mediation most effective? Manolete’s Associate Directors Neil Stewart and Andrew Murphy recently staged a debate in which they each argued in favour of certain approaches to mediation, including online v. in-person sessions, the value of opening statements and whether half-day mediations really work.

Online v. In Person

Andrew: At Manolete we mediate an awful lot of cases. About 97% of cases are settled before trial so our Associate Directors are very experienced in these matters. Covid compelled us to mediate online only. In-person mediation gives us the opportunity to meet the other side in person and politely explain this isn’t a personal matter and that this can very easily be resolved with some work on both sides. That applies as much to us as to IPs, as the defending party might not understand why a claim has been brought against them by us or an IP. 

Neil: Yes, but you can explain those things just as well in a virtual mediation. 

Put yourself in the shoes of the paying party for a moment and ask in which environment you are more likely to settle.

If the mediation is in person, you’ve probably dressed for the occasion. You might have battled through traffic or suffered a busy train journey to get to somewhere you've never been before.  You go into an unfamiliar building with unfamiliar security procedures; you are restricted in where you can go and then you meet a load of people you don't know. That's before you've even started. Contrast that with a virtual mediation. You are in your own environment. You haven't had to travel anywhere. I find people are more likely to make a sensible deal when they are feeling comfortable rather than stressed and uncomfortable.

Andrew: But a lot of tension can build over months of correspondence, so things can seem quite hostile by the time the mediation comes around. Meeting in person can relieve that tension, especially as my first contact on the day is usually to reassure them that I’m there to seek a resolution rather than a shouting match. Doing that in person very often alleviates some of the hostility that might have built up previously.

Neil: Yes, but that can still be achieved virtually.  There is a difference, though, in that often you see a different behaviour on the part of the lawyers online.  It is quite different talking to people you can see on your screen from talking to them in a room.  At virtual mediations, it is difficult to grandstand and it doesn’t happen, in my experience. Instead, people talk the way they would normally talk to other human beings without putting a show on.

Andrew: The other side of that coin is that the experience of the day gives parties a reality check. It can be a very long day, stressful and tense. When discussing best and worst possible outcomes for the parties on the day, I can make the point that however difficult the defendant finds the mediation, a contested hearing is considerably worse, and a settlement today removes the risk of that happening.

Opening Statements

Neil: I used to be a big fan of opening statements until I realised three things:

1. They are a great opportunity for the parties to make grand opening statements and become entrenched or even more entrenched than they were already.
2. You rarely, if ever, learn anything new about your opponent, their arguments, their ability to pay or their approach to settlement.  
3. The chances of saying something which will change your opponent's mind or of building real rapport in your opening speech are minimal. But there is a much greater chance someone will say something that increases the tension and reduces the chances of settling.

Andrew: I agree with all that, which is why I use the opening session to try and build some rapport with the other party, as odd as that sounds. I can assure them I understand their position even if I don’t agree with it and, in my experience, doing that in person adds more weight. I also tell the other party I am happy to meet with them in person during the day, with or without the mediator, if they feel as though anything is getting lost in translation through the mediator or our lawyers. 

Neil: That’s a great approach but the reality is that the other side are often hostile to any litigation funder, and they are not always that keen on the IP, either. The last thing they want is to sit in a room with you, listening to what you or your lawyer has to say.

Andrew: Yes, sometimes it’s not possible to calm things down so early on, so if the opening session is a little more heated, I’m quite happy for the other side to rant at me if it helps them to get it off their chest. In response to that sort of behaviour, I just say that however strongly they feel, the alternative to settling is proceeding to trial and no matter what, we won’t just go away.

Half Day v Full Day

Neil: It is as simple as this. If you know you only have half a day, you know there's no time to waste, so you get on with settling the dispute. A shorter timeframe focusses every party’s attention. In many full day mediations, the morning lacks focus and often you don't get a realistic offer until after lunch. So, by the time the real negotiation starts, everyone is a bit jaded.

Andrew: Fair point Neil, but if the paying defendant party hasn’t made any written offers pre-mediation, then there’ a big psychological barrier to them offering to pay a substantial sum of money. The mediator could easily spend an hour or more coaxing them into making any offers at all, even if we have already made our own offers in advance of the mediation. That would take up a significant chunk of a half-day leaving relatively little time to make progress toward an agreed figure and terms.

Neil: All mediations risk overrunning. A half day mediation might spill over into the afternoon.  It is just as likely that a full day mediation will overrun, but not just into the afternoon – into the evening and even the wee small hours. If your half day mediation does overrun, the chances are it will still be a lot shorter than a full day mediation.  

Andrew: Possibly, but let’s not forget the cost of mediation. While both cost far less than a contested trial, a half day mediation often ends up costing more than a full day. You agree a fixed fee with the mediator, venue and lawyers for a half day, but if the mediation runs past the agreed half day mark, you’re at the mercy of additional hourly rates. That will very often end up costing more than just booking the whole day for a fixed fee. 

Neil: Well, if you do it virtually, as I recommend, you don’t have to worry about the additional venue fee because there isn’t one!

While the above perspectives differ, both agree that mediation remains one of the most effective tools to resolve insolvency disputes, saving time, costs, and the risk of trial.  Furthermore, while they adopted competing stances for the purposes of a debate, Neil and Andrew believe all the above issues are important decisions to be taken every time you agree to mediate and require proper thought. How these decisions are resolved depends on the parties, their relationship, the nature of the dispute and practicalities; there is no ‘one size fits all’ solution.

About the Authors

Andrew Murphy, Associate Director (South & Scotland): Andrew joined Manolete in March 2023 from Blake Morgan’s insolvency team. He qualified as a solicitor in 2012 and was previously Head of Insolvency at JCP Solicitors in South Wales, before moving to an offshore insolvency and trusts litigation role at Appleby’s Guernsey office. Ranked in the 2018 edition of the Legal 500 as a “Leading Individual” for restructuring and insolvency, Andrew enjoyed a varied portfolio of contentious and non-contentious insolvency work in private practice, predominantly acting for insolvency office holders and high street lenders. 

Contact: [email protected] | 07931 318 341

Neil Stewart, Associate Director (South): After 20 years in legal practice, Neil joined Manolete Partners Plc as a Regional Associate Director in January 2019, covering the South of England. He is an experienced advocate with higher rights of audience, an accredited mediator and current chair of R3’s Southern & Thames Valley region, who has lectured to the Insolvency Service, IPA, ICAEW, solicitors and others on insolvency matters.

Contact: [email protected] | 07771 963 975

Manolete Partners Plc is an investment business focused on dispute finance. It is not a law firm and does not provide legal advice. The information provided in this article is correct at the time of publication.