Mediation is often compared to litigation. There are also other areas of Alternative Dispute Resolution you could use. Of them all, mediation stands out head and shoulders as, quite simply, the best way to settle a dispute.
Mediation is fast.
A typical business mediation lasts a day. A complicated commercial mediation might run over several weeks, culminating in a one or two day mediation meeting. The same dispute might take years to resolve through the courts.
With mediation, the cost of your time away from business will be minimal. Your dispute can be sorted in less time than it takes to serve a claim, let alone see a case litigated to the end in Court.
Management time is saved, not only because the process takes less time, but also because time spent on the mediation is spent directly and usefully, not in waiting for lawyers or courts. You will spend more time managing your business, your life and your family and less time managing your litigation.
By the way, if you want an expedited mediation, the Mediator will aim to achieve settlement in hours rather than weeks using a fast-track approach. This can be immensely important when a project is interrupted pending settlement.
Mediation is the lowest cost way to resolve a dispute. An average case in the County Court may set you back by tens of thousands of pounds.
A more complicated claim in the High Court might cost half a million pounds.
With mediation, there is just one payment to the mediator for his or her time on the day. There are no court filing fees and related expenses.
You may believe that recovery of your legal costs “follow the event”. Believe us, they rarely do - at least not fully.
There are all sorts of reasons why a winner never receives back all of the costs.
Our first hand experience tells us that although the initial opinion your barrister gives you may be bullish about your chances of winning, you will find that as the day of the hearing in Court comes closer, all sorts of reasons have arisen as to why the same promising odds as a year previously now have lengthened.
In fact, 95% of claims issued in Court are in fact actually settled before the main hearing.
By the time your legal team is suggesting a negotiation or a direct offer, you will have spent many thousands of pounds, only to be advised to settle - usually under time and financial pressure.
That is when you look back, you may wish you had settled 24 months earlier - by mediation.
You are in control of a mediation.
You are dealing with human beings in a human environment. The Mediator will provide that environment. He is the expert guide who will lead you through the jungle of law and business practice. He will help both sides to see more clearly and to understand the consequences of their decisions.
Litigation is stressful - very stressful.
A court appearance is just one cause of it. Do you really want to stand up in front of a judge? Do you want to be cross examined?
Even an appointment with your solicitor may be stressful.
It’s not only a business problem either. Do you want to wake up night after night, angry, frustrated, thinking about revenge, worried about cost; then spending your days living an exhausted half life.
Just get into mediation and get your life back. Mediation has many advantages over litigation or even arbitration.
Objective assessment of the issues
Even if you think you will have to go to court, you should start with mediation.
The exercise will at least enable you to see both your case and that of your opponent more objectively and clearly.
Because an understanding of your opponent’s case may be obtained more quickly, it is likely that a proportion of your legal costs to that point will be saved, as against obtaining the same information through litigation.
More positively, if mediation does not assist a final agreement, it is likely to resolve some of the issues, leaving the parties to disagree about less.
Protect your reputation. Protect your brand. Protect your technical secrets. Protect your image. Protect your self esteem.
Every word said in Court is usually available on public record. A civil trial may be attended by anyone.
In particular, every judge’s order includes “findings of fact”. Ever after the hearing, the facts found remain on the public record. Often, the publication of facts may in fact consist of data that could be prejudicial to the business of one party or the other.
By contrast, a mediation is confidential. Only the parties to it know even that it happened. Customers, suppliers and bankers are unaware. Reputations are saved, shareholders are happy.
If you run a public company, don’t let auditors, shareholders or financial commentators pick up on your disputes. Litigation has to be disclosed. A mediation can be over in weeks. You will never have a list of running mediations at the end of the financial year.
Many business negotiations fail because one side uses aggressive tactics that intimidate the other. Once you have experienced this, you just do not want a repeat.
While you are together, the Mediator will not allow this to happen. If you never want to set eyes on your opponent, that can be arranged too. What is more, neither side necessarily becomes aware of the financial strength of the other of you, so there is less strategic bullying too.
Court procedures are laid down by government. You cannot get a judgement that is outside the Court’s power to make.
Mediation permits more imaginative solutions that may be more appropriate or helpful.
You can consider settlements that might involve not only money but questions of timing, quality, changes to established procedures, terms of business, confidentiality, Internet silence and other matters that are outside the power of a court to impose.
Because both sides have come together with a view to settlement, there is more trust right away, so apparently intractable problems get solved. Because the mediation process is less stressful, the parties not only find the solution more easily, but are more likely to stick by any agreement ultimately made.
After mediation, the voluntary character of a mediation settlement means that it is likely to be more acceptable to both parties than a court judgment. As a result, obligations under the agreement are more likely to be fulfilled fast and completely than obligations imposed by a Court.
Because both sides are spending money on the mediation, there is a more direct link between cash spent and progress to a solution than there is in a court case, so the parties tend to work to a solution because they see themselves as paying for that, and not for a "day in court".
Choice of venue
We leave it to you to make the administrative arrangements to suit you.
Mediation can take place anywhere.
That could be someone’s home or office, or hired rooms at an office centre. The timing is fixed easily and does not interfere with other important engagements as do court appearances.
Mediation is relatively simple and therefore informal. There is no complex court procedure to follow, nor rules about what you can say.
Preparation for mediation is far easier and simpler than is required to prepare for arbitration or litigation. Your colleagues will be working as usual, not hunting through directories for some critical file, essential to your case.
Business as usual
From time to time, a conflict will arise in a continuing contract. If both parties prefer that the contract continues, then mediation is the obvious answer to resolving it.
The parties can agree a fair and acceptable solution in the presence of a mediator. Mediation is particularly useful for resolving a dispute that forms only a small part of a major partnership or contract project, where the parties continue to be important to each other. This happens frequently, for example, in the case of construction and IT contracts.
In that way, you may be able to continue your business relationship (or doctor / patient relationship) after a mediation. This is unlikely to happen after litigation.
By contrast, it is very rare that parties continue to work together after litigation, even when their case is settled out of court.
The Mediator will be aware of the issues and of your wishes. He will help you to identify the outcomes you most need.
You are able to express your opinions and explain facts throughout the process. What is more you cannot be cross examined by a barrister who seems to be putting words in your mouth.
No document discovery
The Mediator is strict about what documents and data you can use. So there can be no information “fishing expeditions” by your conflict-party, as happens constantly in litigation.
Flexible claims and process
In mediation, you can take a piecemeal approach to settlement. You can accept and both agree to some areas and so reduce the remaining areas of conflict.
You will inevitably see facts in a new light as the mediation progresses, enabling you to discuss new areas and make new judgements.
As a result this increased flexibility makes it easier for you and your conflict party to act as problem-solvers instead of adversaries.
A court case establishes a precedent that later cases may be expected to follow. This does not happen in a mediation.
That means you or the other side are able to make concessions that may be appropriate in this case, without the risk of some lawyer quoting it as precedent on some future occasion.
Cases with heavy technological element
Lawyers constantly have to take in all sorts of special knowledge on a client's behalf. Where a complicated case is ongoing for several years, the legal team will involve a number of different people, each of whom will need to refresh himself from time to time, on the technological aspects of a case.
Whilst this is equally true for a mediator, the shorter time scale of a mediation, and the fact that the mediator alone is outside the ring of technological experts, means that the time spent taking in technical stuff, and also the risk of problems arising through lack of technical understanding, are greatly reduced.
The Courts encourage it
It is a legal duty of a judge to encourage mediation. Judges increasingly send the parties away to seek their own solution.
It follows that if a party either refuses mediation outright or accepts it, and then acts in some way that makes it impossible to conclude, then it is likely that the judge will assume a lack of cooperation by that party and will not look kindly on them.
The new court protocols for defamation and construction disputes now provide that the parties must go to mediation.
You can settle a multi-party dispute by mediation as easily as a two-party dispute.
That applies to a situation whether three or more parties have separate interests, or a class action situation has arisen.
And the disadvantages of mediation
Disclosure of your case
A small percentage of mediations fail to settle. If the parties then decide to go to court then, inevitably both parties will know more about the case, facts and psychology of the other of them that they would if mediation had never taken place.
To put it another way, the opposition will know better what weapons you have and how you might decide to defend your castle.
It is almost certain that your mediator will prompt you to make full disclosure of relevant facts because that is one of the most essential components of the mediation process. However, there is a limit to that disclosure. You should disclose facts that are relevant to the dispute but at the same time you should avoid an outpouring of side issues which are not directly relevant.
You may be left in the dark
Mediation has no formal discovery process. If one of the parties to a dispute cannot fully address the case without first receiving information from the other party, there is no way to compel disclosure of such information.
The party seeking disclosure must rely instead on the other party’s good faith, that may or may not be enough.
Of course, what is a disadvantage to one party may be an advantage to the other. Information that one party would love to have, may well be information that gives the other party a commercial advantage – if not against the first party, then against other competitors.
Expert evidence is required
A solicitor may consider that his or her client's cases are not yet ready for mediation because all of the facts are not yet to hand. In particular, expert evidence may be required in order to be able to assess the position of both parties.
However this is not a good reason to delay mediation. There is no reason whatever why the Mediator should not assist the parties in obtaining the appropriate expert evidence, instructed by the parties jointly.