When two or more parties are in dispute and cannot reach a basis for settlement, Mediation allows for practical solutions in a way that the Courts never can.
In other words, preparing for Court pushes disputants further apart making reconciliation, negotiation and settlement less likely to happen.
Mediation forms one of numerous methods of Alternative Dispute Resolution (ADR as it is commonly known) and is the most frequently used. This is a method of resolving a dispute without the cost, time and anxiety surrounding Court action.
Taking a dispute to Court or Arbitration removes all control as to the outcome and places it into the hands of a third party, ie a Judge or Arbitrator, which could result in a decision that neither party likes. Is it not better then for the parties to find their own solutions?
Long disputes become increasingly acrimonious with disputants paying the price of loss of business, broken relationships and considerable financial outlay. There are no winners, only losers. Mediation should be considered as a relatively small cost when compared to litigation, and without the risk of any of the associated Court cost awards against a particular party.
Interestingly, cost penalties are likely to be levied against a party that refuses to attempt settlement of a dispute via ADR prior to, or once litigation has commenced. Early mediation will keep costs to a minimum given that the dispute has hopefully not yet become adversarial.
Agreed mediation costs are usually split equally between the parties, being payable ahead of the mediation itself.
Unlike litigation, where a decision (solution) is imposed by a third party, mediation allows for the parties to be as inventive as they wish in offering solutions for agreement to the dispute. Mediation is outside the remit of the Court and is held on a ‘without prejudice’ basis, thereby not in any way jeopardising future litigation if, unfortunately, mediation is not successful.
Mediation firstly requires the parties to agree to give it a try….. accordingly there must be a willingness for ALL parties to want to attempt to seek a resolution between themselves.
Mediations are held on neutral territory at a location offered by the Mediator and agreed by the parties. The venue will have separate rooms for the mediation and will be quiet and interruption-free. Typically, hotel conference rooms or business centre rooms are most suitable for the process. Mediations are usually time-limited and most mediations will be scheduled for one day. Lunch can be arranged, as a break is beneficial in what can be a long day.
Mediation allows for practical solutions in a way the Courts never can, avoiding ’winners’ and ‘losers.’ Importantly, mediation also allows the private delivery of ‘apologies’ which can be so important in unlocking entrenched positions as well as creative solutions to satisfy both disputants.
Where matters do progress to Court hearings, the Courts now actively encourage ADR, therefore this suggestion will be put forward at case conferences. However, as explained above, mediation has an even greater chance of success if it is undertaken earlier in the dispute.
The Mediator is an experienced and neutral professional helping the parties explore ways by which settlement may be possible and encourages the agreement of common ground. Trained in the skills of mediation, the Mediator will bring flexibility in approach and lateral thinking to the reasons surrounding the dispute. He is there to assist in the process of resolution, being appointed to help explore all areas of the dispute and indeed challenge and question positions, whilst at the same time encouraging parties to reflect on the consequences of failing to reach an agreement.
The Mediator will encourage the exchange of ideas and alternatives that may encourage settlement of the dispute. He will not judge, provide opinion, suggest solutions or provide professional advice. The solution will always be the solution that has been arrived at by the parties and can be written into a legally binding agreement for signature by the disputants at the conclusion of the Mediation process.
John Goddard, as well as being a Chartered Building Surveyor, is a member of the RICS Neighbour Dispute Service panel (NDS), and is a trained Mediator. Having undertaken his training with UK Mediation, he holds the Commercial Mediation Practitioner’s Certificate.