What is mediation?
There are a number of ways of resolving disputes other than going to court. The most common of these is mediation and it is something that most judges will recommend. The main reason for this is that mediation is generally a more informal, flexible and cheaper way of sorting out a problem than going to court.
Duty to consider mediation
Even before court proceedings are issued, the parties must consider whether some form of Alternative Dispute Resolution (ADR) ie anything which is an alternative to going to court would be appropriate. The rules say that going to court should be seen as a last resort.
Courts can order the parties to a dispute to show that they considered mediation and if not why they didn’t. This could include the preparation of witness statements and disclosing letters sent during the case which referred to mediation. If there has been an unreasonable refusal to mediate by someone, then that party could be ordered to pay the other side’s legal costs of the action even though they might be successful in the case ! Every party to a dispute should consider this very carefully and if the other side propose mediation, it should only be refused in exceptional circumstances.
When to mediate?
Mediation can take place at any time – at the beginning of a case (even before proceedings are issued), during a case and even shortly before trial. The costs of trial are always the most expensive part of the whole court process and if cases can be settled before then, substantial costs savings can be made. If court proceedings are ongoing, the court will often put those proceedings on hold until the mediation has taken place.
Who is the mediator?
The mediator will generally be an experienced lawyer or other professional in the field for example, a surveyor in a property dispute. The mediator’s role is there to ease discussions and to help find a solution which both parties can agree. The mediation will normally take place in a solicitor’s office.
How does it work in practice?
There has to be give and take by both sides. There is no point in entering into mediation if there is no genuine desire to resolve their differences. The mediator will encourage the parties to look at their own cases and will hold a series of joint and private meetings to try to help the parties better understand their cases, assess their merits and to look at alternative solutions to those offered by the court.
The mediator’s role is not the same as a judge and there is no power to force an agreement on the parties. The process is a voluntary, confidential one and there are no rules of evidence as there are in court hearings. The parties are free to withdraw from the mediation at any time, although if they have entered into the right spirit, they will generally be best advised not to, unless the process has broken down. However, if at the end of the mediation, a solution can be found, it is sensible for the parties to enter into a written agreement which is binding on the parties and could be enforced through the courts if need be. Statistics show that mediation is successful in around 80% of cases.