Posted: Tuesday, 12 September 2023 @ 09:20
If you have a legal dispute one thing you should consider(possibly even before instructing a lawyer) is whether the case can be mediated.
Mediation is encouraged by the Courts, can save you money but before you embark on that step it is worth asking yourself certain questions including:
- Can you negotiate directly with the other side?
- Have you made a written offer?
- Are there factors which make the case unsuitable for mediation? (e.g criminal allegations/you would not trust the other side to honour an agreement)
And if you decide to mediate make sure that you get a good mediator because the difference between a good mediator and a not so good one is like night and day.
Dealing with the specifics of mediation, what are the
benefits of mediation to disputing parties?
the website of Centre for Effective Dispute Resolution website, over 70% of the
cases that it deals with settle. However, the evidence is not all one way. Evidence submitted to
Sir Rupert Jackson in connection with his inquiry into legal costs, for
instance, showed that 95% of personal injury cases settle without the need for
formal mediation. And a US study by the Rand Corporation involving 10,000
mediations suggests that, while over 70% of cases resulted in settlement, they
may not have resulted in much savings by way of costs or time. Therefore, do
not view mediation as some kind of panacea.
Informal – This should not detract from the intensity of the process but mediation
is a more relaxed forum than the Court process especially if done online. Clients like it because they
can resolve disputes in a way that they are familiar with, namely negotiation.
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 legal forum e.g back and forth lawyer writing.
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 several 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.”
control of the process 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
Speedy – The
ground covered in mediation would often have taken months in a traditional
suitable where parties need a continuing relationship or the parties want to get back together in having some kind of 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.
– ln 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..
– 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
On the other hand what are
the dangers of mediation and when should you not mediate?
If you are
convinced that you will do better with Court. Court cases do fundamentally
involve a significant level of risk but if as a professional advisor you are
convinced that you will do better in Court, then you should avoid mediation,
subject to the rules of the Court.
If you have
no confidence that the other party would honour the terms of the agreement. In
these circumstances your party’s best interests will be served by going
directly towards trial and a court judgment.
If you really want your day in Court. If you
believe that getting judicial input is the best way to go.
Negotiator’s Dilemma – open dialogue may tempt the other side to greater
demands. This is a particular dilemma relating to mediation. Nevertheless with
the way that the Courts are operating it is increasingly not a sign of weakness
to propose mediation.
The costs of mediation do not justify seeking this course. Mediation can be a costly exercise and you need to factor those costs in.