Lawyers and their clients are sometime reluctant to engage in mediation especially when they consider they are in the right! Parties should always identify what their objective is before embarking on litigation and mediation is one strategy to achieve this objective. In litigation, even if a party is successful, a Court is limited in the remedies it can award. In mediation the parties have complete freedom and control over the outcome and the settlement terms.
Mediation offers a great degree of flexibility allowing for a remedy to be agreed between the parties such as apologies, amendments to contracts, payments of money in instalments, grant of licenses or other positive commercial outcomes. In contrast, a judge is constrained in the remedies he or she can award. Litigators cannot choose their judge whilst both parties can select their mediator and mediation offers a cost and time effective route to resolving legal disputes. An experienced mediator can bring value to the process, giving the parties the best opportunity to have a constructive discussion at an early stage before legal costs escalate and become a stumbling block. By entering into mediation neither party loses their right to pursue other dispute resolution methods and, unlike litigation, which is open to public scrutiny, mediation is “without prejudice”. Litigation, by its very nature is adversarial and often irreparably damages relationships, whereas mediation encourages communication and co-operation between parties and can often preserve relationships and generate future business. A mediator can also help break down barriers to a successful settlement by helping parties think through the risks of litigation and to honestly address the question of what would happen if they did not settle.
Mediation: The process, in brief
- Select a qualified accredited mediator
- Agree on location
- Sign Agreement to Mediate document
- Legal representatives to provide bundles for mediator preparation
- Introduction of parties by mediator
- Both parties outline reasons for dispute
- Mediator meets with both parties to explore, bargain and negotiate
- All separate and joint meetings are confidential
- An achieved agreement will be formalised in writing by the mediator
Recent cases have shown that the Court may deny winners at trial their costs and expenses if they have unreasonably refused to mediate. By providing cost effective mediation (sooner rather than later in proceedings) as a sound strategy to their clients, lawyers have the opportunity to establish and create long term relationships based on proven commercial solutions as opposed to costly litigation. In the UK mediation saves UK business £1 billion a year (but only costs £8 million).
For further information visit the Mediate To Resolve Website by clicking here.