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Should You Mediate Your Case?

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

Generally Effective –Per 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.

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 legal forum e.g back and forth lawyer writing.

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 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.” 

Retain 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 arbitrator.

Speedy – The ground covered in mediation would often have taken months in a traditional negotiation.

It is 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.

Confidential – 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.. 

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.  

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.

The 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.