Considering your obligations as a solicitor in England & Wales you are bound by the Solicitors’ Code of Practice to advise your client about mediation as an alternative method of resolving disputes. So what should you tell your client? These are the topics you should cover, you may wish to expand on each item depending on the needs of your individual client:
Mediation is a method of negotiation.
Ultimately a court will decide the outcome of a case. However parties are strongly encouraged to resolve the dispute themselves with help of their legal representatives. This is usually done through negotiation. Mediation is a method of negotiation in which a trained neutral assists the parties in reaching a settlement they can all live with.
Mediation is fast.
Mediation meetings can be arranged quickly. They have a high success rate and therefore in appropriate cases mediation can help in significantly reducing the time taken to resolve a dispute. Most mediations take between 4 and 6 hours.
Mediation is cost effective.
By bringing settlement of a dispute forward the costs of employing the mediator can be a fraction of the costs that would be incurred by both sides if the dispute goes to trial. Clients may also enjoy significant saving in management time by early resolution of a claim.
Mediation is voluntary.
You do not have to mediate and not every case is suitable for mediation. If you do attend a mediation you are free to leave it at anytime, you can walk away with no settlement, you are not bound to reach agreement. If you do not settle this dispute the mediation is entirely without prejudice to the on-going litigation. For this reason you can not “lose” a mediation.
Mediated settlements are not limited to the payment of money.
The parties can make any agreement to settle the dispute provided it is legal. It will be enforceable once the parties have signed the agreement which happens at the end of the mediation. This type of settlement can be very useful in helping parties maintain relationships e.g. where a profitable trading relationship has faltered.
Failure to consider Mediation can result in costs penalties.
The courts can and will impose costs penalties if the parties fail in their duty to help the court in effectively case managing the litigation by considering alternative forms of resolving the dispute e.g. mediation. See Dunnett v Railtrack PLC
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