Alternative dispute resolution
If you have ever thought there has to be a better way to settle a dispute than by spending thousands of pounds on legal fees, months of recrimination, anguish and frustration, and days in court, then just maybe mediation could be what you are looking for.
Quite simply it's a way of resolving disputes without the need to go to court. Sounds fantastic and very simple, and in essence it is. If both parties in a dispute agree to undergo mediation, then a trained mediator, who is an impartial third party, guides the parties to a settlement on which they both agree. The mediator does not impose a decision or attempt to judge the merits of the case.
The difficult bit about mediation is actually getting both parties to agree that mediation is a good idea in the first place. Most disputes become very personal and our legal system is geared to a combative approach - finding fault, picking holes, showing blame or error. People are not inclined to settle. They want their day in court. They want to show the other party that they were in the wrong. These are all very natural thoughts, but they don't really help. Mediation looks at the common ground, the positive aspects and finds the best resolution for both parties.
Mediation requires the consent of all the parties concerned, but if one or more have not indicated willingness, it is possible to approach a mediation organisation or individual mediator to help to negotiate that initial agreement. Once the concept has been accepted, there remains the question of the choice of mediator, but this is generally best left to the mediation organisation to recommend a trained mediator with the relevant experience.
At an agreed time and venue the mediator listens, allows the parties to express their feelings, explores underlying issues, challenging and encouraging where necessary. The mediator spends time with each party, both in joint session and in private meetings (sometimes called 'caucus') helping each party to focus on their interests, and the interests of the other parties, rather than their rights. The mediator will explore the early part of the relationship, drawing out what it was that caused them to work together initially, and what caused the breakdown in trust or confidence between the parties. The mediator will help the parties to examine areas of possible agreement as well as disagreement. The mediator will also help each party to examine their own resolve, testing out their belief in the true strength of their own case and their resolve to fight rather than settle. Some of this process can be difficult if not painful for some parties: for this reason, the mediator will never test parties or try to expose weaknesses in a case in joint session, only ever in private.
All the discussions are completely confidential - the mediator will not repeat or imply to another party anything that one party has said unless or until the mediator has been given express permission to do so. This confidentiality allows the parties to trust the mediator so they can discuss openly all aspects of their case. Eventually, by spending time "shuttling" between the parties, the mediator can help the parties to understand their own and each other's positions in a way quite different to that of the traditional adversarial case and, hopefully, reach an agreement.
If no agreement is reached the parties are not in any way bound by what has been discussed. The agreement becomes binding once it has been drawn up and signed by the parties: if the agreement is not honoured it may be enforced contractually or preferably by a further mediation. Most agreements are honoured though, precisely because the parties have worked hard to achieve a settlement, and upon terms that were always within their control, unlike an imposed court decision.
There are plenty of very good reasons, such as:
- The outcome of mediation is always within the control of the parties - with the help of the mediator they decide for themselves upon a settlement they can live with.
- Parties in mediation avoid the uncertainty and dissatisfaction often experienced in court or at arbitration where they have little choice but to accept the judgment made, which may turn out not to please either party.
- Mediation resolves disputes fast, usually within a day.
- Mediation is significantly less expensive than litigation - because months or years of litigation are avoided, as are the consequent fees of lawyers and experts. Parties may of course have legal or other advisors present during the mediation if they wish.
- Everything said at the mediation is entirely confidential to the parties (unless specifically agreed otherwise) - unlike the potential publicity of court proceedings.
- The mediation process is 'without prejudice', so that on the rare occasion that a settlement is not reached, litigation may continue without the parties needing to worry about having 'given away' anything that the other could use in court.
- Mediation works in some 90% of commercial disputes - a settlement is usually reached on the day, or within a few days of the mediation meeting.
- Mediation is voluntary; any party may withdraw at any time.
- Nothing is binding upon any party until an agreed settlement is reached. Once a settlement has been drawn up and signed it becomes an enforceable contract between the parties.
- The mediation is arranged at a venue convenient to the parties, who each have their own room as well as a separate room for joint meetings. The mediator listens to everyone's point of view, talks to the parties privately and together, guiding them towards a settlement.
- The mediation can take place at any time - it is not limited to ordinary working days or hours. If it suits the parties to negotiate over a weekend, then that's when it happens.
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