Mediation, Why Bother?

Although mediation has been widely available in the UK as a means of resolving disputes, it is still not widely used. The principles of mediation are not always understood by Solicitors let alone their clients. It will often allow parties to resolve their differences at a fraction of the costs of going to court.

Mediation is not a replacement for negotiation between parties who are in dispute but can be particularly helpful where the parties have tried to negotiate and have failed particularly where there is a strong emotional component to the dispute or communications have broken down

Mediation takes place where an impartial third party, the mediator, helps two or more people who are in dispute to try to reach an agreement by facilitating their negotiations. In that role he does not act as Judge or Arbitrator. Consequently it is not up to the mediator to make a decision about the outcome; any agreement would have to come from those in dispute and not from the mediator. Instead, the mediator is in charge of the process which may lead to the dispute being resolved but is not responsible for the outcome. A skilled mediator, however, will seek to understand the barriers to the parties negotiating a settlement and will create a process which, in his view, is best designed to try and overcome those barriers.

Characteristics of mediation

Unlike other more formal procedures for resolving disputes through the Courts, Tribunals or by means of Arbitration, mediation is:-

  • Informal. It will be up to the mediator to determine the process which will be used. A skilled mediator will need to introduce an element of formality in order to ensure that both parties are satisfied that he is dealing with them on an equal footing. However, mediation can take place wherever the parties determine and the environment is generally more relaxed than it would be, for example, in the corridors of the Court.
  • Voluntary. Both parties must agree to participate in mediation. Since it is the parties themselves who have to determine the outcome, if either party is not engaged in that process with a view to trying to do so, the mediation is unlikely to succeed.
  • Confidential. The mediator will make it clear that anything that is said to him during the mediation is confidential. The mediator himself is likely to have confidential meetings with all parties separately from all the others. He will encourage the parties to reveal confidential information to him but will make it clear that he will not reveal that information to any other party without their consent. However, the ability of the mediator to talk in confidence to each party will help him to understand what may be preventing the parties from resolving the dispute themselves. In addition, (and for some people this can be important) the outcome can remain confidential to both parties.
  • Without prejudice. The mediator will make it clear that nothing which is discussed at the mediation can be referred to if the dispute later goes to Court. This can encourage the parties to make concessions for the purposes of the negotiations without having to withdraw those claims from the Court and without the other party suggesting that that their claim is weak simply because they have made that concession during the negotiations.
  • Flexible. Generally speaking a judge dealing with a dispute before a Court or Tribunal has to make decisions of fact and then apply the law to those facts in order to give a decision. In making that decision s/he may have a limited range of remedies that s/he can award. On the other hand, a mediation is like a negotiation in the sense that there are no restrictions on what it is that the parties may decide to agree. Therefore it is possible for the outcome of the mediation to include terms which a judge could not award.

Why bother?

Setting up a mediation, particularly a commercial mediation, can be an expensive process. If the mediation fails, it can add to the costs of resolving the dispute. However, when court proceedings are issued, the parties tend to retreat into their corners to marshall their arguments, draft their statement of case etc.; mediation is often the first occasion on which the parties have had a chance to sit down and reflect on that court process, in order to try and work out what might be an effective way of resolving their dispute, since they first put together their detailed statements of case and began to collect their evidence.

Mediation can be used at any stage of resolving a dispute but it is commonly used when the parties have established their legal positions and have exchanged their evidence but before they embark on the expensive process of preparing to resolve the dispute by going to Trial.

Although the costs of mediation can run into several thousands of pounds, statistics show that up to 80% of cases will resolve at mediation. If the mediation is successful then both parties will avoid two things:-

  1. The very considerable expense of taking the dispute to a Trial in order to have the outcome determined by a Judge, Tribunal  or Arbitrator; and
  2. The very considerable uncertainty involved in leaving the outcome to be determined by that process.

Resolving a case through mediation achieves a certainty of outcome at lower cost and in a shorter time frame. These are often the factors which encourage the parties to reach a compromise agreement as an outcome of the mediation rather than pursue the other options that may be available.

In summary

Mediation is an effective way to resolve many disputes. If you are not clear about how that option might help, you need to ask your solicitor to explain it to you. It has the potential to achieve unlock difficult relationships and encourages the parties to resolve the dispute themselves and to keep some control over the outcome.