Written by Hugh Elder
This week is Mediation Awareness Week. Lawyers and clients who are regularly involved in dispute resolution will need little reminding, but there is less familiarity with the process among the general public, and even lawyers in other disciplines, who sometimes confuse it with arbitration.
Mediation is a structured, confidential process by which parties to a dispute sit down with an independent third party, the mediator, who helps them find a resolution in a safe environment in which all discussions are without prejudice and confidential.
Before the mediation the parties provide a brief written summary of their case and a bundle of relevant documents. The mediator will then contact each side to try to clarify the issues and to ensure that those attending the mediation have authority to settle.
In civil and commercial mediations (family law mediations operate differently) the mediation day usually opens with a round table meeting with each party having the chance to get things off their chest and to make sure that their opponents understand where they are coming from.
The parties then go into separate rooms and the mediator shuttles between them exploring in more detail the underlying issues (which are sometimes not apparent from the papers), reality-testing the strengths and weaknesses of each side’s case and finding out if there are common interests.
Each party is able to discuss its position in confidence with the mediator, secure in the knowledge that the mediator is not allowed to pass on the content of any of those discussions to the other party unless specifically authorised to do so.
Eventually the first offer to settle the case will emerge from one side or the other and inevitably there are a series of counter-offers. Statistics suggest that about 70% of disputes settle on the day of mediation with another 15% settling shortly afterwards.
A solution reached at mediation has numerous advantages over a solution imposed by a judge at trial or by an arbitrator. The parties save substantial legal expense, time and stress. It may also be easier to preserve a working relationship, which can often be important in a commercial dispute. Neighbours and family members may (although not always) be reconciled. But, best of all, the parties retain control of the settlement which can include matters other than those pleaded in the legal papers. For it is important to emphasise that the mediator’s role is to facilitate the parties reaching agreement; neither to impose a solution, as a judge or arbitrator does, nor to advise the parties.
Mediation, strongly encouraged by the courts, is now such a common way of resolving disputes that a leading judge has recently suggested that it should no longer be categorised as ‘alternative’ dispute resolution (ADR), but should be regarded as the norm.
All members of the Gordon Dadds dispute resolution, employment and family law teams are trained to advise clients on mediation and, where appropriate, to represent them at mediations. In addition, some members of the firm are trained mediators and accept appointments from individuals and businesses to act as mediator in a wide range of disputes.
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