What is mediation?
Mediation is a process for resolving disputes where an impartial intermediary called a mediator helps conflicting parties to talk through their issues, negotiate and come to a mutually agreeable solution.
The mediator will listen to both parties' views and you will get to have your say.
Do I have to engage in mediation?
Recent case law states that the court has the power to order parties to engage in alternative dispute resolution ('ADR').
Also, for a long time now, it has been the case that if a party refuses to partake in mediation, this could have a significant impact on the issue of costs, to the point costs could even be ordered against the successful party.
Mediation will likely require an element of compromise in order to settle the dispute, therefore it is only worth incurring the time and cost of mediation if you are willing to come to the table with an openness to negotiate a settlement.
Who pays?
The onus is on both parties to attempt to resolve the matter using ADR and so the cost of mediation is usually split between the parties. This will be the mediator's fee and other costs such as venue hire.
Each party will pay their own solicitor's costs for attending the mediation.
What are the benefits of engaging with mediation?
- You are in control. You do not have to accept an outcome you are unhappy with, unlike in court where a Judge makes the decisions.
- It saves you time. With cases taking an unprecedented length of time to be listed for trial, mediation is a method of bringing cases to a swift conclusion. This enables parties to regain their life back. We understand that litigation takes up a lot of time for our clients and their businesses.
- Reduces your costs. Costs budgets to take a case to trial can run into hundreds of thousands of pounds and even if a party is successful, the full amount of these costs is unlikely to be recovered from the other side. By avoiding going to trial, the cost of a matter can be greatly reduced.
- High success rate. The Centre for Effective Dispute Resolution ("CEDR")states that the vast majority of cases which go to mediation settle on the day or shortly after. CEDR's tenth audit shows there was aggregate settlement rate of 92% (72% on the day and 20% shortly after).
- There is flexibility in the remedies available. At mediation, the parties can agree creative terms of settlement which the court would have no power to order.
- You have a choice of mediator. When cases proceed to trial, the court will appoint a Judge, however with mediation the parties are able to select a mediator of their choosing. This is particularly useful in cases which would benefit from specific technical or industry knowledge. At Ellisons, we have experts in Employment and Workplace Mediation, Business Mediation and Contested Trust and Probate Mediation.
- You can avoid court and litigation risk. For many of our clients, the thought of going to court is very stressful and daunting. If the matter is able to be settled at mediation, there is no need to proceed any further with the court process. This in turn eliminates the litigation risk that the Judge may not decide the case in your favour. In the alternative, if you like the idea of having 'your day in court', mediation is a great way to have your thoughts and feelings about the matter heard without the strict confines of giving evidence at court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.