Marian Davies, Solicitor with AMD Solicitors explains why mediation is an increasingly attractive option whatever the type of dispute.
Are you already involved in court proceedings? Are you about to resort to them?
If you are in either of these situations it may be worthwhile to think about turning to mediation to achieve a cheaper quicker and more satisfying solution to your dispute.
Mediation is a flexible process conducted confidentially in which a neutral trained mediator actively assists parties in working to a negotiated agreement.
So what are the advantages?
IT WORKS! Not always of course but in 90% of commercial cases an outcome which both sides sign up to is achieved through mediation. Mediation is successful because it introduces a different dynamic into a dispute. It is not the role of the mediator to impose a decision or attempt to judge the merits of the case. It takes place on a day, even a weekend if you wish, selected by the parties and their advisors. The date and venue are both specifically chosen for their convenience for you. No queuing for a court date fixed by others.
IT’S CHEAP AND THE COSTS ARE CERTAIN. Mediation is significantly less expensive than the legal costs of bringing or pursuing an action through the courts with all the attendant risks and worries of having to pay the winner’s legal costs in addition to your own, if you lose. Mediation resolves disputes fast, usually within one day. The mediator’s fee, which is known and agreed in advance, is customarily split equally between the parties.
IT’S CONFIDENTIAL. All parties sign up to confidentiality. This means that in the rare cases, it does not result in an agreement, everything said or done during the mediation is completely confidential. Proceedings can be started or continue unprejudiced by the mediation.
IT’S FLEXIBLE. The role of the mediator is to manage the process to help the parties agree. Mediation is not just compromise which may happen after hasty negotiations. Instead the parties are helped to consider in a confidential situation with the help of an experienced neutral creative options for settlement which may not be available through other means.
IT’S AVAILABLE AT ANY STAGE before a final hearing of a case or there may have been no issue of Court proceedings. Even in a dispute that is close to a Court hearing date, mediation can be explored as an alternative as the process is completely flexible. It is not binding until an agreement is reached.
HOW IT WORKS. The mediator listens and will explore underlying issues challenging and encouraging parties where necessary. The usual structure is that the mediator will spend time in an initial joint session with both parties and then in private meetings helping each party to concentrate on their real issues and needs. This can help overcome deadlock and emotional barriers. The mediator helps the parties reassess their cases and re-build relationships where appropriate. The parties will be assisted in examining areas of possible agreement as well as disagreement.
WHY IT WORKS. It works because mediation helps parties who own their problems to also own their solutions. The parties remain in control of the decision making.
LEGAL ADVISORS CAN BE INVOLVED OR NOT AS THE PARTIES WISH. The beauty of mediation is that its complete flexibility means that the parties can involve their advisors or indeed anyone else whose presence may be helpful as much or as little as they want.
WHAT CASES ARE SUITABLE? Many more than you might imagine. Commercial and Contract matters, Disputes involving partnerships and companies, Employment and workplace Disputes, Land and Property disputes and Negligence claims have all been satisfactorily mediated. In many of these cases it will be important to the parties to maintain an on-going relationship and this is more likely if a resolution can be found which is satisfactory to both sides.
CHOOSING A MEDIATOR. Mediation is a skill. A good mediator will have been trained and accredited by a recognised dispute resolution organisation that offers continuing professional development and training. A good mediator does not have to be a specialist in the subject matter of the dispute because their role is not to decide the case.
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