Mediation in disputesResolving a dispute in court, can be a traumatic, costly and ultimately frustrating affair. You may be called on to spend vast sums of money on legal fees, and the dispute can drag on for months or even years, while lawyers argue your case. In addition, the court process can be intimidating to anyone who is not familiar with the often slow and intricate processes of law, and parties to legal actions can frequently feel as if they have lost control of the proceedings.However there is an alternative. Mediation is a form of dispute resolution that is growing rapidly in popularity and has a high record of success.What is mediation?Mediation is a form of alternative dispute resolution (ADR) which means dispute-solving by means other than going to court.With mediation, both parties agree to appoint a trained mediator who assists them to clarify the issues and reach a compromise solution. It is the mediator's job to establish the common ground between the two parties, looking at each of their needs, and to act as a neutral channel of communication between them.Since the parties to the action appoint the mediator,
they stay in control of the proceedings throughout the case. The crucial difference between mediation and going to court or arbitration (where parties appoint a professional person to hear their arguments and make a decision) is that the outcome is not imposed on the parties. Instead they themselves reach a settlement that is agreeable to all sides.The mediator is there to facilitate a settlement, not to sway decisions, therefore they must not tell the parties their own views of the dispute.Why use mediation?The main advantage of mediation is that it saves money. Another benefit is its flexibility: there is no ...
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they stay in control of the proceedings throughout the case. The crucial difference between mediation and going to court or arbitration (where parties appoint a professional person to hear their arguments and make a decision) is that the outcome is not imposed on the parties. Instead they themselves reach a settlement that is agreeable to all sides.The mediator is there to facilitate a settlement, not to sway decisions, therefore they must not tell the parties their own views of the dispute.Why use mediation?The main advantage of mediation is that it saves money. Another benefit is its flexibility: there is no hard and fast rule about how the mediator should operate. It's up to the parties themselves to work out how the dispute is to be settled. The mediator might gather both parties together to work out a solution, or might move between them so that they do not have to meet.It's also fast. Most issues are resolved in a day. Above all, it works - mediation is successful in about 90 per cent of cases.Confidentiality is one of the most important elements in mediation. The mediator will not repeat what has been discussed to another party unless given express permission to do so. This allows you to trust the mediator and discuss openly all aspects of your case.What are the drawbacks?One drawback is that there is no guarantee the matter will be resolved, meaning the parties might put themselves through the process of mediation and then still have to go to court. In the event of this happening, however, at least the parties will have narrowed down the issues, making an out-of-court settlement more likely.Another drawback is that one party might be in a stronger position than the other, which means discussions cannot take place on an equal footing. In this situation, mediation is not an appropriate way to resolve the issue.What kind of disputes are suitable for mediation?Most types of dispute are suitable for mediation, from commercial disagreements to workplace disputes and divorce proceedings. It is as appropriate for neighbours quarrelling over the garden fence to multi-million pound disputes between multinational corporations.Where can I find a mediator?Mediators are often specialists in particular fields, such as shipping, divorce, consumer issues or employment. There is no exhaustive list and you will be able to find a trained mediator for most types of dispute. However, it may not even be necessary to find a specialist as it is the resolution-finding skills of the mediator that are important and not their knowledge. Remember, mediation assists you and the party with whom you are at loggerheads, to find a solution, and the mediator is not there to provide you with the answer.Mediation is not regulated. However, those who have been accredited by the main training organizations will have undergone intensive training and will follow a code of practice. Trained mediators should carry professional indemnity insurance.Many solicitors are also qualified as mediators, and are required to follow the Law Society (the regulatory body for solicitors) Code of Practice. Some courts, such as the Central London County Court, run mediation schemes.There are several mediation companies available to you, either specialist or general, and you should be able to contact them via your local Citizen's Advice Bureau. Of course the major mediation organisations will have websites, and they will be able to recommend an experienced mediator to you.You can even mediate online in some cases, although this option is available if less than £15,000 is at stake, and is appropriate where geographical distance or constraints of time make it difficult for parties to meet up. It might also be a good option where parties feel uncomfortable about meeting face-to-face.Mediation requires the consent of all the parties concerned, but if one or more have not indicated willingness, it is possible to ask a mediation organisation to help to negotiate the initial agreement to go to mediation.What will happen?Once you have agreed on mediation and have chosen a mediator, you will normally sign a formal document setting out who will attend mediation, who the mediator is, the agreed fee, and the time and place of the mediation. This document is known as an Agreement to Mediate.You may wish to consult a solicitor before attending mediation, particularly if the dispute has a strong legal base, so that you are fully aware of your rights and duties before you begin. It is not necessary to have your lawyer present at the mediation itself, although this is possible if you prefer it.On the day, the mediator should reiterate the rules and explain the structure of the day before calling the first face-to-face meeting. Each party will have a chance to make an opening statement and the mediator might then invite questions. However, mediation is a flexible process and there is no set method of operation.
