The Truth about Mediation

The Courts today like all parties to explore some form of Alternative Dispute Resolution (ADR) prior to litigation, which is the costly process of involving solicitors and potentially the Courts.

Mediation is one form of ADR, in which a neutral third party, the mediator, assists two or more parties in order to help them achieve an agreement on a matter in which they are in dispute.

Some regard it as a must, others are more sceptical and regard an offer of mediation as a sign of weakness.  So, what is the truth about mediation? Does it work? And, if so, how?

The short answer is yes – if used properly and effectively at the right time in the life of a dispute.

It is certainly something which should be considered; not only at the outset of the dispute or when asked by the court but throughout the dispute.  Mediation is unlikely to succeed if entered into just because the court asks you to consider ADR.  The attitude, timing and mediator must combine to create an optimal environment for settlement.

While many hanker after their ‘day in court’, mediation can provide an opportunity to put your case at a more affordable price, and remove the uncertainty of trial.

Just an expensive meeting?

‘Why do we need to pay a mediator when we can sit around a table ourselves; we are never going to settle anyway’ is a common mantra of many clients.

Mediation goes beyond a formal all parties meeting by introducing an independent party.  The impartiality of a good mediator ensures an additional and very important dimension to settlement discussions. 

A good mediator will listen to the parties and will identify the areas where the parties are in agreement.  This is in complete contrast to the usual approach in litigation where lawyers are encouraged to find the (often subtle) differences in facts, legal argument and to find clever ways of distinguishing case law to support the case he/she is being asked to advocate.

Mediation is sometimes the first time that parties to litigation ever recognise that there are points upon which they agree.  This can be a positive experience and can have an impact on the ability to find common ground.

An effective mediator will also identify the parties’ objectives both short term – i.e. on the day itself – and longer term – i.e. wider issues surrounding the person who is engaged in the dispute.  It is often these wider issues which provide a catalyst for settlement of the dispute.  The mediator will attempt wherever possible to take the parties away from the minutiae of the legal issues and to get them to focus on the commercial objectives that they may share.

Mediation can be costly but compared to the costs of running a dispute to trial it is commercially sensible to keep it open as an option throughout the course of any dispute.

Key points to note are:

Solicitors Journal Feb 2010

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