What is mediation?
Mediation is a form of Alternative Dispute Resolution (ADR) that helps two or more parties in a dispute to resolve their differences without the need to go to court.
Mediation is a flexible, voluntary and confidential form of ADR, in which we assist parties to work towards a negotiated settlement of their dispute, where the parties keep control of the decision on whether or not to settle and on what terms.
What is the role of a mediator?
A mediator will work with the parties to achieve a settlement to the dispute. A mediator is impartial throughout the process and cannot advise on the legal position as this is beyond the remit of the role. However, our legal background can assist the parties in understanding the times and costs involved should they decide to litigate the dispute in court.
We act as an intermediary between the parties, to facilitate settlement. We can be tough with the parties when required and play “devil’s advocate”. We ensure that all parties understand the terms of settlement that is reached.
Styles
There are different styles of mediation but the most common is facilitative mediation in which, unlike a judge or arbitrator, the mediator will not decide the case on its merits, but will work to facilitate agreement between the parties.
The mediation agreement will usually require the parties to treat all discussions and documents as confidential and without prejudice (WP). Usually, what is said or written cannot be used in later proceedings if the mediation does not settle, but there are some limited exceptions. Confidentiality of the process means that each party can speak with ease and lay their position without the concern that it may be used against them in legal proceedings.
Benefits
There are many benefits to mediation, some of the most obvious ones being cost and time saving whilst others include but are not limited to:
- Communication problems between the parties can be overcome. The mediator is a neutral third party who can act as an intermediary between the different personalities and negotiating styles of the parties.
- The mediator can help the parties work through a deadlock situation that can be created by competitive or positional negotiation.
- Business relationships can be preserved or enhanced by mediation.
- Confidentiality and privilege are cornerstones of the mediation process. The private nature of mediation also ensures that negative or embarrassing precedents are avoided.
- The parties have complete choice over the selection of the mediator whereas, they cannot choose a judge if the matter goes to full trial at court.
- Mediation can produce outcomes that might not be possible in court or arbitration.
- The deal reached is flexible and created especially to suit the parties. The court on the other hand has a limited range of remedies open to it.
- The parties’ personal, commercial and technical needs, interests, aims and objectives can be prioritised.
- Since mediation is voluntary, the parties can withdraw from or terminate the mediation at any time.
- Mediation can provide a swift resolution. It can be arranged quickly, often within a few days or weeks.
- The mediation process is low-risk; there is “nothing to lose”
- Mediation has a high success rate and produces durable results. Between 65% and 85% of cases settle at mediation; some mediators advertise success rates in excess of 90%.
- The outcome is usually more favourable for the parties than any solution that a court or arbitration tribunal imposes, as the parties themselves have responsibility for creating it.
Even if a mediation does not result in settlement and the parties go to court, they will have benefited from the process by:
- having the opportunity to listen to each other’s points of view and perspectives;
- narrowing the issues in dispute; and
- testing with the mediator the strengths and weaknesses of the case, and the strategies adopted or considered, in the run up to a trial.
Is mediation suitable for all types of disputes?
Mediation is suitable for most disputes. If you are in a legal dispute, no matter how small or large, whether you have already engaged lawyers, or are thinking of doing so but not sure, we suggest you consider mediation. If you have any questions or concerns about the process, we are happy to help you in answering the same.
Choosing a mediator
Choosing the right mediator is key because the process is based on trust and confidence. These principles of trust and confidence are enshrined in how we do business as lawyers. We apply the same ethos to our mediation services where we aim to build trust and confidence with the parties by whom we are instructed.
