Increasing the take-up of mediation

When two parties find themselves in dispute, their first reaction is often to reach for litigation, but there are other options for resolving the dispute that can be taken before that stage is reached, known as Alternative Dispute Resolution, or ADR. One of the most commonly recognised and used forms of ADR is mediation.

What is mediation and how does it work?

Mediation involves an independent third party (the mediator) who seeks to help both sides come to an agreement to resolve their dispute.

In summary:

• It is usually confined to a set period of time (a couple of hours to a lengthy day, depending on the complexity involved in the dispute)

• It often starts with each party presenting a summary of their case to the mediator and in the presence of the other party

• The parties then retire to separate rooms and the mediator travels between them, seeking to identify issues where agreement may be reached, thus gently pushing the parties in that direction (it is sometimes described as a formalised process of ‘shuttle diplomacy’)

• Where appropriate, both parties may be called back before the mediator

• The mediator cannot impose a settlement on the parties, but settlements may be arrived at by the end of the process

While there is a degree of formality to the structure of the process, particularly with the preparatory work, the day is intended to be fluid with the mediator steering the direction of the discussions.

A skilled mediator can go a long way towards the parties reaching either a binding settlement or, at the least, narrowing the scope of the disputed matters.

Do you have to mediate a dispute?

ADR has been around for some considerable time now and yet it is still considered to be failing, in the sense that too many parties are taking their disputes to court when this arena and a judicial decision may not be the best result for them, particularly with regard to issues of cost, time and continuing relationships.

Encouraging uptake in the use of ADR has been a common theme since the 1998 introduction of the Civil Procedure Rules.

There is a common misconception that discussion around increasing the use of ADR necessarily involves a compulsion on parties to mediate. This is not currently the case. That said, the direction of travel is shifting in this respect.

In the absence of mandatory mediation (although some contractual documents contain ADR clauses which do impose such an obligation on the parties should a dispute arise in relation to the contract), the court may nevertheless impose costs sanctions on those who unreasonably refuse to consider ADR.

Many of the pre-action protocols, including the Practice Direction Pre-Action Conduct and Protocols, expect the parties to engage in some form of ADR in an effort to resolve their dispute outside the court system.

The cynic might take the view that if civil justice were less expensive, if judicial decision making were more robust and if delays were fewer, the appeal of - and need for - mediation would be much diminished.

Advantages

• Speed

• Lower costs (in comparison to the costs of litigation to trial)

• Confidentiality

• Control

• Surprisingly high settlement rate

Disadvantages

• Mediation will not be suitable in all cases, particularly if there is a need for:

• an urgent remedy

• a test case, or

• legal enforceability

• A party who reasonably believes that they have a strong case will almost inevitably have to compromise, if mediation is to succeed

• Costs of the mediation (preparation time and attendance of solicitors and counsel) can be expensive and disproportionately high, especially in relation to more modest claims

• Sometimes mediation simply does not have a reasonable prospect of success and will only add to the costs

• Lack of vindication for the wronged party

• Lawless – the mediator is no guardian of the parties’ rights nor any check against unreasonable behaviour and the dynamic is often determined by whichever party can be most unreasonable: whoever holds out longest often secures the best outcome

This is a necessarily brief outline of the mediation process; if you are facing a dispute and feel that this would be advantageous for you, speak to an experienced legal adviser. Most law firms should be able to advise on the process and its implications, giving you the information you need to make an informed choice.