The benefits of mediation to resolve a dispute
Prior to becoming fully embroiled in a costly, time-consuming and sometimes intimidating court process, alternative avenues to resolving a dispute should be sought. Even once a solicitor has been instructed, one of the first things to consider is whether there is some sort of Alternative Dispute Resolution (ADR) available with some prospects of success.
Granted, this may not be easy when there is bad blood between parties, but any means of achieving settlement without going to court should always be at the forefront when a dispute arises, as there is always greater commercial efficacy and incentive in avoiding the issuing of proceedings. Mediation is one such method of ADR that is often worth considering.
What is Mediation?
The core elements of a mediation are that an individual (usually a qualified mediator) will act as an intermediary between parties. The mediator will not proactively make suggestions but instead diplomatically encourages the parties to find common ground in an attempt to reach a satisfactory resolution for all involved. A typical set up at a mediation is for the renting of different rooms at a venue with the mediator shuttling back and forth between the parties until the session’s conclusion.
What are the benefits of mediation?
There are many benefits of mediation which parties in dispute perhaps do not appreciate enough but should take heed to, such as:
By attempting mediation, parties demonstrate to the court (should the matter proceed that far) that pre-action efforts to settle have been made. This reflects better from a costs and conduct perspective further along in the proceedings than if no ADR is pursued.
Mediation puts parties on an even footing; there is no opportunity for one party to bully the other into getting what it wants.
Mediation is confidential and conducted on a Without Prejudice basis; it cannot be referred to in court should the outcome be unsuccessful and any settlement reached is not a matter for public consumption.
Mediation offers considerable savings in costs and time over litigating through the courts.
The mediation can be as formal or informal as the parties want it to be; there is a large degree of flexibility as to how it is conducted.
One of the greatest benefits of ADR often overlooked is the ability to devise bespoke, creative solutions to problems. The court has very prescribed powers and will usually only ever award damages. At a mediation, the parties could settle on the basis that one apologises to the other in writing, or on the basis that all parties enter into a new business relationship by way of examples.
The agreed outcome of a mediation can be made binding by a Memorandum of Agreement or a Settlement Agreement signed by all parties to the dispute, providing legal force to a settlement.
We in the Dispute Resolution team at Lennons have our clients’ best interests at heart. To this end, we advise from the outset and throughout the process that alternative means of resolving disputes such as Mediation should always be on the table; there is little to lose and potentially much to be gained by giving it a try.