This article first appeared in Business Matters June 2009.
Nearly every business finds itself from time to time in dispute. Maybe with a supplier or a customer or an employee or shareholder. Sometimes the directors or partners are in disagreement. Usually the problem can be resolved and the parties move on but occasionally it is not quite so simple. Disputes escalate, lawyers become involved, court proceedings are commenced and nobody knows where or how it will end. One thing is for sure, there is rarely an outright winner at court and the “winner” is invariably left counting some expense.
Solicitors have recognised that litigation is often not the best solution to a clientʼs problem. Indeed the Solicitors conduct rules require them to advise all clients about alternatives to going to court, one of the most popular and mainstream of which is mediation. Mediation is a way of resolving disputes through negotiation. The mediator is an impartial participant in the negotiations and has the express goal of helping the parties reach an agreement that they can all live with. The mediator is not a judge and will not give advice to the parties who will usually have their legal advisers present for that. The mediator is however highly skilled in helping parties find ways to break deadlock in negotiations and reach solutions even where this seems impossible at the outset. Good mediators never give up.
Most mediations follow the pattern of an opening joint meeting with the mediator and all the parties and legal representatives present. All sides have the opportunity to have their say about the case without being interrupted or cross-examined. There then follows a series of private and confidential meetings between the mediator and the separate parties. The mediator uses these meetings to discover what the parties can agree on and helps them design their own solution to the problem.
More often than not it is very much a business rather than legal solution that is reached. Once the terms have been written up and signed it becomes an enforceable and binding agreement. The process is voluntary which is a guarantee that you can not “lose” at a mediation because if you are unable to reach an agreement then you can walk away and return to the litigation.
Mediation is also confidential and without prejudice, so if it does not succeed and parties go back to a legal fight nothing that was said at the mediation can be used in court. Mediation offers some potential huge advantages to parties over litigation which include:
- A considerable saving in legal expenses. Mediations rarely last more than one day. Compared to the costs of preparing for and attending a trial this can represent an enormous saving.
- It can be arranged at very short notice and certainly much sooner than a trial.
- Management time which would otherwise be spent with solicitors or at court can be saved.
- You have opportunity to speak directly to your opponent and explain how the dispute has affected you – the opportunity to be listened to.
- The parties agree between themselves what the solution is – they do not have a decision imposed upon them by a judge.
- The uncertainty and risks of losing the legal dispute are removed and replaced with certainty of a concluded agreement.
- Important business relationships, which may have been interrupted by the dispute, can be preserved.
- Settlements can be wide ranging. The parties can agree to anything that is legally enforceable and are not limited to the payment of money from one side to the other.
- Mediation is not so formal as court proceedings and is a lot less stressful.
- It is confidential unlike court proceedings which are open to the public and are often reported by the local press.
If you or your company is involved in a dispute and want to know if mediation is a suitable way to resolve it then you can contact a mediator, they will always be happy to speak to you about a potential case or to explain how the procedure works. Good mediators are highly approachable and will be more than willing to spend time explaining the process to you. If you have instructed solicitors then they should already have advised you about mediation but ask them about it again. They should be skilled at representing you at mediation and will probably be able to recommend a mediator for you. As one senior judge famously said, offering to mediate a dispute is not a sign of weakness, it is the hallmark of common sense.
Philip Hesketh is a full time Professional Mediator
