In these uncertain times the last thing most people will want is to be embroiled in a legal dispute. Going to court is stressful at the best of times but even more so currently. Jacqui Joyce provides a timely reminder of the benefits of meditation compared to litigation.
What is mediation?
Mediation is an assisted negotiation where a third party neutral (the mediator) helps the parties do a deal. It usually involves a day with both sides (and their advisers) present and can be a series of meetings or the mediator ‘shuttling’ between the parties (or a combination).
Mediations can be carried out virtually so every person can be in a separate physical place but the mediator can place them together in a virtual room. Each side can have their own private room and the mediator can go between them and also get participants together in a joint virtual room. The technology is free for participants.
Every two years a survey is carried out of mediators in the UK by CEDR and the Civil Mediation Council. The lastest was the Mediation Audit 2018. It estimates that there are 12,000 mediated cases per annum.
Just over 74% of those cases settled on the day, with another 15% settling shortly thereafter, giving an aggregate settlement rate of around 89%.
A mediation can be organised within days and usually concludes within one day so a solution can be achieved quickly. Half day mediations can also be useful for smaller disputes. Often it can take at least a year for a matter to reach trial and then parties need to wait for a judgment and often appeals.
Whilst a day’s mediation may involve the fees of the mediator and any lawyers/experts attending, it is vastly less expensive than taking a matter to a full trial.
The Mediation Audit 2018 estimated that the value of cases mediated each year is £11.5 billion and that mediations saved business around £3billion a year in wasted management time, damaged relationships, lost productivity and legal fees.
A mediated settlement will also free up time for a person to spend on their business and /or take away months of stress, worry and uncertainty that would be involved in going to a trial.
Mediations are confidential (as a result of the mediation agreement) and sometimes it will not even be known that a mediation has taken place. Litigation is public with a trial being in open court and judgments freely available for everyone to read. For all sorts of reasons parties may prefer not to have their dispute aired in public.
Mediations are also confidential internally so whatever one party says to the mediator is confidential and will not be repeated to the other side unless they say it can. This gives the parties a safe space to explore options with a neutral third party. They are also without prejudice to any legal proceedings, again giving the parties a means to negotiate without the risk of compromising their formal legal case should the matter not settle and go to trial.
Litigation is a confrontational process where the parties often end up entrenched and not liking or trusting each other. Mediation on the other hand can help restore relationships either in a business situation e.g. between landlords and tenants, contracting parties and also between individuals e.g. neighbours and family members. There should be no winners or losers in mediation but a mutually acceptable solution which enables all parties to move forwards.
A court can only decide who is right or wrong according to the law and the facts. In mediations these can be set aside to enable the parties to come up with a workable solution to their dispute which may well be something that a court cannot order eg renegotiation of a contract or variation of a lease. Both parties can benefit from the deal.
The client is central to the mediation and is involved throughout. This can be very different to a court process where they are often at the back of the court relying on their witnesses and advocates.
In a mediation the client can constantly weigh up what is being discussed as a solution and assess the risks. They can also see the other side and their advisers and form a view of the strengths and weaknesses of the case. It also gives them an opportunity to talk face to face to the other side and often things such as an apology can go a long way to helping a deal.
Choice of mediator
If a matter goes to court a judge will be allocated. The parties have no choice as to it is. Sometimes there will be a different judge at different points in the process. The judge may not have any specialist knowledge of the area of law in dispute.
At a mediation the parties choose their mediator. They can choose someone they trust or who has been recommended to them. They can also choose someone who has experience and knowledge of the type of dispute so that they will understand the issues but also be able to help formulate possible solutions.
Follow the rules
The Civil Procedure Rules, which govern the process of taking cases to court, state that litigation should be a last resort and require parties to consider alternative dispute resolution (ADR), including mediation, before commencing (and during) litigation. If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered.
The rules also state that a party’s silence in response to an invitation to participate, or a refusal to participate, in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs. There are numerous reported cases where this has happened and a party would be brave to refuse to consider the possibility of mediation.
Jacqui Joyce is a full-time mediator with The Property Mediators who specialise in mediating property disputes