Mediation is a very cost effective way of resolving a legal dispute. In the UK mediation has become an essential part of the litigation process and has many benefits for both clients and their lawyers. But what is it?
Mediation is a voluntary process in which an independent neutral person (the mediator) helps the parties to reach a mutually acceptable solution to their dispute. The process is completely confidential, and any discussions which take place cannot later be referred to in court. Once an agreement is reached it is legally binding on all parties which means court proceedings can either be avoided altogether or come to an end without a fully contested trial taking place. Most importantly it allows both parties to take control over what is agreed, and it saves the costs of uncertain and stressful litigation. It is an efficient means of settling cases.
The advantage of mediation is that the mediator focuses primarily on the interests of each party and what each of them ‘want’ and ‘need’ to resolve the case. Through a series of private meetings with each party, the mediator helps each party to work out what their key issues and options are, and then uses those options to try and assist them in reaching a mutually agreed settlement. Anything discussed with the mediator is not divulged to the other party without express permission.
Mediation is an ideal tool to use for resolving cross-border disputes either between private individuals and/or companies. It can be used for any type of dispute – matrimonial, contractual, property, negligence, employment, probate, commercial, construction, company, partnership, product liability, defamation, intellectual property, landlord and tenant etc. It avoids the potential for court proceedings being issued either at all, or started in multiple jurisdictions, where one party resides in a different country or outside the single market. It can therefore be an effective means of settling potentially complex and expensive litigation.
As lawyers, we all have a duty to act in the best interests of clients. Often when court proceedings have been issued, information or evidence comes to light very late in the day which changes a case completely. This leads to frantic, last minute attempts being made to settle, in order to try and avoid an adverse outcome at trial. Mediation helps to avoid this. Resolving disputes without the need for stressful, expensive and lengthy court proceedings is always in a client’s best interests.
Even if a mediation is unsuccessful, statistics have shown that many disputes still settle shortly after the mediation takes place. One of the reasons for this may be that this is often the first time that parties meet face to face since their dispute has arisen, and indeed, it is frequently the first time that their lawyers come together. This alone can provide an opportunity to move the case forward in a constructive way allowing each party to assess and analyse the merits and weaknesses on their respective positions. Without a doubt, during the course of a mediation, some new information will come to light which will impact on the eventual outcome. This could include:
- New facts or evidence
- An insight into why the other party is so committed to their position
- An awareness of something the client may not have disclosed to their own lawyer
The fundamental basic principle of mediation is that the process is privileged and confidential. However, something new always comes to light during the process. Although this information cannot be used outside the process, it will often affect a client’s position, any offer made and the conduct of any future litigation.
To get the best out of a mediation, parties are encouraged to do the following:
- Set the goals and objectives the client wishes to achieve from the mediation to help resolve the case.
- Expect to discover something new about the case.
- Be open minded and be ready to accept information from the other side which may undermine the client’s case.
- Be candid with the mediator to achieve the best chance of a settlement.
- Ensure the client participates in the mediation so that they can see the extent of the case they face.
- Allow the mediator to present a realistic and often sobering perspective to the client.
There is no doubt that a properly conducted mediation will always be a valuable investment in time and effort. It will always produce some benefit and should be actively encouraged as a tool in dispute resolution.
Lubna Shuja is Deputy Vice President of the Law Society of England and Wales and Solicitor and Mediator – Legal Swan Solicitors, Birmingham, UK.