Mediation control
Feeling out of control can be an uncomfortable situation. Most of us feel happiest when we are in charge of our own destiny.
In the mediation process, this can prove a thorny issue. Emotions are already running high, otherwise, a case would not have come as far as mediation.
Everyone involved may want to ‘take control’, but letting go of some control may be the key to success.
Participants driving their own case forwards
As a participant in mediation, are you in control of the case, your solicitor? The process? The other side?
You ought to feel you have a measure of control with your solicitor. You have instructed them to represent you to the best of their ability, and they should always have your best interests at heart. However, remember that doesn’t mean they should always agree with you, or just blindly follow your instructions.
For most business and property cases, you are still in control of the mediation process as it is voluntary. You can choose to engage with it or not. If you agree to participate in a mediation your solicitor will be strongly advising you to participate fully in the mediation process to give it the best chance of success so that court can be avoided.
One area you cannot control is the other side. You have to accept their willingness to engage in mediation or not and deal with it accordingly. There will always be those who agree to mediation but just ‘go through the motions’ or feel they are ‘ticking a box’
What about the Court and your costs?
The legal process is set out in the practice rules and is there to provide fairness for all. You cannot control the process and can only follow it. By using mediation, you can hopefully avoid a lengthy and time-consuming court case and retain an element of control in the process.
Costs can be a daunting area but one which you have more control over. You can choose your own solicitor and a particular mediator (if the other parties agree). This will be a fine balance between choosing the best expert for the job, as well as the best value for money. By doing this the costs will normally be fixed, giving you an element of control over this aspect.
Solicitors taking the lead
Are solicitors in control, commanding the mediation process?
Just like participants, solicitors can’t control the other side when it comes to negotiations. They also can’t control the process. They can only represent their client and advise on the best way to resolve the dispute.. By negotiating with the other side, an experienced solicitor will be able to influence the conduct and conclusion of the mediation.
Solicitors can control the costs of a mediation process by selecting a mediator with a level of costs that suits their client. They can also look at options such as half or full day mediations, or co-mediation, and advise which they feel is more suited to the case. They should always evaluate the approach that will offer the best value for money and give the best chance of success.
As an experienced and innovative Mediator, accredited in Business Mediation for Commercial and Residential Property, Construction, Business and Commerce, Retail, Restaurant, Healthcare, Franchising, and financial related disputes I can help.
With over 33 years’ experience as a property solicitor I am fully versed in the legal framework of property and business disputes, and passionate that mediation provides a fresh approach, with a 75% success rate.
To find out more about my mediation services please contact Roger Levitt Mediator
