I would like to start out my new blog with a series of articles covering the basics of commercial mediation and the mediation process. Although mediation has been available to litigants in the UK for decades, it has seen a rise in popularity in the last 18 months. Part of the reason for this has been due to the recession and the need to save money and time. But the reasons for its popularity go much further than that. Often a participant just wants to be heard properly or for another participant to give an acknowledgement, or just say sorry. There is legislation pending in the House of Lords to allow for a participant to say sorry without this constituting an admission of liability.
The first question to answer is, “What is mediation?”
1. What is mediation?
Mediation is a confidential, voluntary form of dispute resolution. It is a negotiation process used generally in civil dispute cases such as landlord/tenant, real estate and construction, family, workplace, negligence and community disputes. In order to mediate, all participants to the dispute must agree to engage in the process.
Disputing participants work with a qualified independent mediator, usually in a half-day or full-day mediation session, depending on the complexity of the case and the number of participants involved. The goal of mediation is to create a solution that is acceptable to all participants, cost and time effectively.
A successful mediation concludes in a resolution that all participants can “live with”. It is often said that the best solutions are those where the participants are equally unhappy. That may sound paradoxical, but it is important to appreciate that a solution to a dispute that all participants can own is not about “winning” and “losing”. Ideally, each participant wins some concessions and each participants give something up. The parties “own” their solution and can thus control it. This is often far preferable to a court-imposed solution in which each party risks an “all or nothing” roll of the dice. A court verdict is unpredictable; a mediated solution provides all participants the opportunity to craft a dispute resolution that at least provides some benefit to each of them.
A key consideration in mediation is that it is completely confidential. If your mediation is not successful, neither participant can use anything about the process or the contents of the mediation against the other participant or the mediator. Mediation is a win-win process if a settlement is reached, but no participant loses if it is not successful.
2. When should I consider mediation?
Mediation is not just for cases already filed with the court; if you are thinking about taking your dispute to court, you can prevent incurring potentially high legal fees by suggesting mediation before going to court. It is important to recognize that a court case takes months or years to conclude, with the chance that the losing party will file an appeal, keeping the issue locked up.
Mediation is also appropriate when trying to preserve a relationship with the other participant by preventing the ill will that often accompanies going to court.
Mediation is suitable in long, drawn-out court cases where parties risk losing significantly by an imposed court-issued verdict. Often, these are all-or-nothing cases in which the outcome is highly unpredictable. While everyone hopes to win, each side knows there is a risk of walking away with a completely unacceptable outcome.
Our next article will look at what happens during the mediation process.
