Mediation. A Beginner’s Guide.
Mediation (also known as alternative dispute resolution, ADR, dispute resolution and mediation) is now regularly used as an alternative to going to court. Think of it ‘safe place’ where the parties involved can come together to address the issues and obstacles behind the dispute they’ve found themselves in. Helped by a neutral third person (the mediator), the aim is to reach a viable solution to resolve matters harmoniously without the need for litigation.
Which disputes can mediation help?
Mediation can solve problems quickly and amicably. It has proven effective across a range of disputes including:
- Commercial contract disputes
- Breach of directors’ duties
- Shareholder and partnership disputes
- Merger and acquisition post-acquisition disputes
- Property litigation claims
- Trust and pension issues
- Employment issues
- Boundary and neighbour disputes
Interested to learn more about the use of mediation in commercial disputes? Read our recent blog ‘How to Calm the Commercial Storm‘…
How does mediation work?
Mediation is not organised by the Court. It is organised privately by the parties involved.
These parties should find their preferred mediator and then agree on a venue, and a date and time it should take place.
Mediation advice – Each of the parties involved, including the mediator, will need their own private meeting room. Make sure your chosen venue can accommodate this!
- The mediator will introduce themselves and chair a joint session. This is the chance for each party in the dispute to say what they are there for, what they want to achieve and what their position is.
- The parties then separate (to avoid conflict), retiring to their private rooms.
- The mediator then takes it in turn to spend time, privately with each party. Asking what the issues are, narrowing the issues and eventually attempting to enable the parties to make each other a resolution offer. All of this is communicated via the mediator, not directly.
- Once a resolution has been reached the mediator draws up an agreement and each party signs.
Mediation – The Benefits
- It is quick! If you issue court proceedings, which are then contested, you are likely to be in dispute for up to one year. Mediation on the other hand can be arranged at quite short notice and once organised it usually takes 1 day.
- It is inexpensive. Litigation is notoriously expensive, in fact if a case is disputed then the costs are likely to amount to tens of thousands of pounds. Mediation is far more affordable. With an initial fee starting at around £500 per party plus the cost of legal representation. Generally, each party pays one half of the mediator’s fee and one half of the cost of room hire.
- It is flexible. At mediation the parties involved in the dispute can ask for anything they like. You are not limited as in court proceedings. For example, an apology can form part of the agreement. and the outcome can be and very often is something a court could not have ordered had the claim gone to trial with a judge.
- It provides certainty. Once an agreement is reached, and has been signed by all parties, then it becomes a legally binding agreement. If one party then negates on the agreement the other party can issue court proceedings in confidence that the judge will rule in their favour.
DISPUTE RESOLUTION CONSULTATION
Terry Maylin TM Law solicitor gives this advice to clients:
“It’s important to remember that mediation is not about achieving a fixed outcome. So enter into it with an open mind, willing to consider a settlement you can live with, rather than one that ticks every box. It’s also important to remember that it is not the mediator’s role to impose a decision or give their opinion on what should happen. In fact, it is quite the opposite, they are there to facilitate an agreement not impose their views!”
What are the disadvantages of mediation?
There are no disadvantages to mediation itself.
However, the process does rely on the parties in the dispute each agreeing to participate with an open mind. This can sometimes prove tricky when parties argue that they have ‘done nothing wrong in the first place’. Or if they are concerned ‘showing their hand’ will reveal a weakness in their case.
However, beware. If you are unreasonable, and refuse to participate in mediation than there can be consequences.
There are a growing number of disputes where one party has refused to mediate. The case has gone to court and they’ve won, yet still lost out. As the Court has not awarded costs because their initial refusal to mediate was considered unreasonable.
What happens if the mediation fails and an agreement is not reached?
Mediation is completely confidential. So, in the unlikely event that mediation does not result in a settlement, you can still bring court proceedings. Safe in the knowledge that nothing said or referred to will be relied on in the proceedings.
How successful is mediation?
The UK national average for dispute settlements reached through mediation is around 80%. At TM LAW this figure is more frequently 85%.
The most important this to consider is that ‘success’ is not related to total happiness in the outcome. To be successful in mediation is to reach a settlement that you can live with, meaning you can move on with your life/ business. Relieved that the dispute is resolved.
About TM Law – Specialist Alternative Dispute Resolution Solicitors
Based in Hockley, Essex, TM Law is a small and dedicated solicitors. With many years’ experience, helping business owners and local individuals with matters of dispute resolution, compromise agreements, employment disputes, debt collection, commercial disputes and much more.
As a specialist alternative dispute resolution and litigation solicitors, TM Law will advise on whether disputes should be resolved through Court proceedings or alternative dispute resolution, including mediation. Enabling clients to solve problems quickly, cost effectively and as amicably as possible.
For a personal service and professional commercial mediation services as an effective alternative to litigation contact us today. We offer a fair, fixed fee service and we’re always happy to help.