Posted: Friday, 4 January 2019 @ 13:43
Fundamentally while lawyers may make their money our of litigation they and you should be looking at the possibility of extraction from a dispute at any opportunity.(on the right terms of course)
Given this, what are the benefits of mediation from the point of view of the paying party?
The benefits include: .
Mediation is effective
– 80% of cases work for mediation and have a successful resolution.
Contrast this to the litigation process which is unpredictable, produces
winners and losers and the remedy is blunt and offers limited solutions. According to the website of Centre for
Effective Dispute Resolution website, over 70% of the cases that it deals
with settle. The Department for Constitutional Affairs “DCA” keeps a
record of all the mediations, which the government in involved in. According
to the DCA, it estimates that the use of mediation has led to £23 million
of savings.
Mediation is Informal –
However this should not detract from the intensity of the process but
mediation is a more relaxed forum than the Court process. Clients like it
because they can resolve disputes in a way that they are familiar with,
namely negotiation. Whatever the rights and wrongs of the dispute a CEO of
a business are not going to like being cross-examined in a witness box and
this is a way to resolve that process.
Potentially
more cost effective - Mediation
will normally be more cost effective than litigation. It is efficient and
can avoid the “per hour” charging structure of most professional firms.
The ground covered by mediation would normally take months in a
traditional negotiation.
Offers
more solutions – A court is often limited in what it can award. Mediation
allows for a variety of decisions to be made. In the case of Halsey Dyson
LJ observed, “We recognise that mediation has a number of advantages
over the court process. It is usually less expensive than litigation which
goes all the way to judgment…..Mediation provides litigants with a wider
range of solutions than those that are available in litigation: for
example, an apology; an explanation; the continuation of an existing
professional or business relationship perhaps on new terms; and an
agreement by one party to do something without any existing legal
obligation to do so.”
The client retain
control of the process. This is compared to litigation where even the best cases
are not certain to succeed. It is crucial element of mediation that the
parties choose the agreement rather than having one imposed upon them by a
judge or an arbitrator.
It is speedy –
The ground covered in mediation would often have taken months in a
traditional negotiation.
It is
suitable where parties need a continuing relationship. Litigation tends to
exacerbate differences between parties and by the end of a case parties
are unlikely to want to renew their relationship. With every day that the
case moves on, the relationship between the parties gets worse and worse.
A senior manager is not going to take too kindly to being cross-examined
in court whatever the rights and wrongs of the dispute.
Confidential…litigation
often takes place in a public forum. Mediation is both without prejudice
and confidential. In these types of disputes settlements can be re-jigged
so that public acknowledgements can be made and press releases issued.
The Court
may impose cost penalties if the parties can show that they have not
considered mediation. Whilst this is applicable within general litigation
proceedings, this does not yet apply within private client legal proceedings
though it looks likely that the new employment rules will require some
form of incentive to consider mediation.
Enforceable
– A settlement contract within mediation can be enforced like any other
contract though it may not be as readily enforceable as a judgement of the
court.
These are some of the benefits of mediation which your lawyers should be flagging up to you.