Commercial litigators, like our colleagues in many other legal fields, sometimes recommend mediation as a way to resolve disputes. It’s not suitable for everyone or every case, but if it has been suggested to you, please don’t dismiss the prospect. You may feel you want your day in court, but at least evaluate the process first.
What is mediation and how does it work?
Known officially as alternative dispute resolution (ADR), mediation is a flexible, voluntary and confidential method of settling legal matters without court proceedings. Put simply, it aims to find solutions to problems without making them worse.
The practice can take different forms, although ‘facilitative mediation’ is the most common, in which an independent mediator works with the parties in conflict to help them reach an agreement. This is in contrast to the way a judge or arbitrator operates – they will decide the outcome of a case based on its merits.
During mediation, all parties must treat whatever is discussed and any documents disclosed as confidential. All materials revealed will be regarded as ‘without prejudice’ and cannot then be used in court if the matter escalates.
Mediation can be used at any time, right up to an appeal being launched and allows more flexible outcomes than court proceedings, which can work to your advantage.
If you are considering mediation, you may want to know a little more about what to expect.
Each party will have a private room and you will be accompanied by your solicitor. The mediator will start by explaining the process, as well as their role and the procedure involved. You will then be asked to make an opening statement.
The mediator will undertake private discussions with each party to help negotiations, which may or may not result in a settlement.
There are several pros to mediation – and a couple of cons. It is an excellent way to resolve a deadlock situation, sometimes helping to preserve or even improve relationships or create business opportunities. You can talk freely, safe in the knowledge that what you say won’t be used against you in court and legal costs can be reduced.
Parties have complete autonomy over the selection of a mediator and the process is relatively low risk. Regardless of whether a settlement is achieved, it allows you to listen to the other point of view and evaluate your case.
Of course, mediation isn’t perfect and there are some disadvantages. For example, the mediator can’t order disclosure, so if a settlement isn’t reached, the process has simply added time and cost to your matter. There is also a risk your strategy will be exposed to the other party, although discussions do take place privately and the mediator will be aware of their duty of confidentiality.
The majority of commercial disputes usually settle without court intervention and therefore, mediation isn’t often necessary. However, if you are considering entering the process and would like more information, don’t hesitate to call me or my colleagues in the commercial litigation team on (0114) 218 4000 or email firstname.lastname@example.org