Courtroom dramas on stage and screen can make compelling viewing but often mask
the weeks and months of preparation by lawyers, and their client, needed to put their best case forward. In this Q & A, we get under the skin of “mediation” - an alternative to court that may secure a better result, without the drama.
What is mediation?
Mediation is a means of resolving legal disputes without a court battle. It is essentially a facilitated negotiation. All parties to the dispute assemble and a neutral third party (the mediator) works with them to arrive at a settlement. Often, the parties will be located in different rooms and the mediator will shuttle between them, passing information and ideas back and forth, to help them broker a deal.
What types of disputes are suitable for mediation?
Most disputes lend themselves to resolution by mediation; we have acted for clients in mediations that have resolved disputes between different generations of the same family, those that have arisen in the context of buying and selling companies, between trustees and those relating to the ownership of property. They can be especially effective when a number of parties are involved and where there is an ongoing relationship to maintain.
What are the advantages of mediation over court litigation?
• The no cash solution: The mediator has the freedom to help the parties find a settlement that may not just be about the payment of money. As a result of a mediation, clients have benefitted from the transfer of shares in the business, receipt of a private apology, swapped shareholdings and secured provisions for a third party.
• Preserving existing relationships: Litigation is usually adversarial
in nature. The English system encourages this. Where parties need to continue to work together, mediation can help them come to agreement that allows them to do that, with minimal disruption.
• Speed: A mediation can be arranged within weeks; cases in the English courts can take two years or more to reach trial.
• Privacy: All discussions in a mediation are confidential and “without prejudice”; in other words, what is said cannot be referred to outside the mediation, including in any
later court proceedings. Often the issues in dispute are not all “legal” as such but are matters of loyalty or differences in approach or values. In a mediation, difficult family issues can be aired in private. Court proceedings are usually public so already sensitive issues may be given the oxygen of public reporting
• Win/win: It is often said that there are really no winners in court proceedings. Even the “winner” will not recover 100 per cent of their legal costs and will have invested time and effort in preparing for trial. Mediations can be held at any stage in the dispute, even before court proceedings start; this allows a deal to be struck before the dispute escalates and before further time (and money) is spent.
• A day in court: Those involved in litigation may or may not be called as witnesses at trial, depending on what relevant factual evidence the court needs to hear. By contrast, there are no such rules at a mediation so grievances can be aired by those who wish to have their say.
• Misunderstandings can be cleared up: Sometimes disputes are based on a long-held misapprehension and warring parties become so entrenched that the opportunity
to unravel the truth is lost. This is especially true with inter-family disputes where emotions can take hold and obscure the core of the disagreement. Mediation allows the parties the freedom to explore what really lies at the heart of their conflict and find a solution.
What is the success rate?
A number of different figures are quoted but the Centre for Effective Dispute Resolution (the “industry body” for mediation in the UK) puts the figure at 89 per cent with 74 per cent of cases settling on the day of the mediation and 15 per cent settling shortly after.
How long does a mediation last?
The vast majority of mediations last for one day. They can last longer but usually, once the process has started, momentum takes hold and participants find that they do not wish to leave without a settlement. Even if settlement is not reached on the day, the parties may find that they have moved closer together and will make a deal shortly afterwards.
What happens if the mediation does not work and no settlement is reached?
If the court proceedings have started, they will continue; very often, the act
of laying out the issues within the confidential mediation process will result in those in the matters in dispute in the litigation being narrowed.
And finally…
While mediation is not always the panacea, the success rate speaks for itself. The confidentiality of the process and the opportunity to vent frustrations makes it an attractive alternative to court. Maybe not as dramatic as those fictional court room showdowns, but certainly more effective.
