Mediation – what is it & why should I consider it?
The mediator is neutral, his skill is in helping parties to reach their own agreement
Mediation is an alternative way to resolve disputes. It is fully supported by the courts and allows the parties involved to have more control, resolve their dispute quicker and save massively on legal costs. An important fact is that the issues are dealt with confidentially rather than in an open court.
If you appoint a mediator, he is not called on to make a decision. He is a neutral person who is brought in from outside to help the parties to reach their own agreement. The process allows for each party (there may be two or more) to have his say and put forward his point of view. The mediator will usually see each of the parties independently for confidential discussions, as well as together.
The eventual agreement may be based on an assessment of the legal situation, but may take into account all sort of other factors. It may depend on commercial or personal matters and may extend far beyond the subject matter of the original dispute. The important thing is to reach an agreement which is broadly satisfactory to all sides. The mediator need not be a lawyer, but it is often helpful if he can bring a lawyer’s experience to bear on the dispute. He can even advise the parties as to what he thinks a judge would decide, if both parties agree.
An enforceable written agreement
Mediation is a confidential process and will result in a written agreement which is enforceable by either party. Generally speaking, even though you will have to pay the mediator, adopting this course will result in a very large saving of costs compared with taking the matter to court, with legal fees mounting as the months go by. The parties do not have to be represented by a solicitor or barrister, but even if they are, there is likely to be a substantial saving as against an action in Court, or even an arbitration.
Mediation can take place anytime
Mediation can take place at any time, from the moment when a dispute arises. Thus if you have already gone to Court, the judge is likely to be happy to adjourn proceedings so that you can try mediation. Sometimes after a court decision there is an appeal. If so you can still resolve the outstanding conflict by means of mediation up to the date of the appeal hearing. Either way the parties should first try to settle their differences on their own.
It is when they have discovered that they cannot do so that mediation is most effective. Even when the parties are deeply entrenched in their positions, it is surprising how often mediation succeeds. Experience has shown that the introduction of a qualified neutral person can make all the difference.
The courts support and encourage mediation
Mediation can only take place when the parties agree that it should, although there is strong encouragement for this course from the courts. If one side refuses to try this course and the case goes to court, it could affect his claim for the costs of the action.