Mediation as an alternative method of dispute resolution is fast becoming a more popular means of resolving disputes. With the assistance of a mediator parties can negotiate settlement to bring an end to their dispute outside of the court system, in a fast, cost effective manner.
What makes a case suitable for mediation?
Mediation can be used in almost all types of cases. We can help you explore and assess whether mediation is suitable in your circumstances, or your legal advisor may be able to assist you in deciding. Where you require the court to give a specific or declaratory relief, or to rule on a specific legal issue you mediation will not be suitable. However, parties are required to explore mediation in the first instance, and need to consider mediation seriously throughout the lie of the case.
When to mediate?
Timing a mediation right can improve its use as a cost-effective and successful means of resolving the dispute. The optimum time for mediation varies depending on the individual facts. Generally speaking, it is useful to consider mediation once the issues have been defined and before proceedings are issued, which will also aid in saving on costs and time. Additionally, the courts are strongly supportive of mediation following the Philip Garritt-Critchley decision , and refusal to mediate may be a costly error which can lead to serious costs penalties.
Costs is normally a very important factor for both parties. Mediation is often a good alternative when communications between the parties are difficult, and a mediator can help to over come these by engaging in confidential dialogue, acting as an intermediary to accommodate different personalities and negotiation styles.
Confidentiality is very important, particularly in business situations where long-standing relationships often need to be preserved. Mediation provides protection through confidentiality and privilege, allowing companies to avoid negative press or potentially harmful precedents from being in the public domain.
Mediation can also lead to outcomes not available via the court, particularly in light of the fact that mediation is a far faster means of resolution – mediations can be organised within a couple of days or weeks. As well as a settlement, what else do you get out of mediation?
The scope of remedies available through the court or even arbitration may not be in the parties best interests from a business, commercial, or personal perspective. The mediation takes into account the commercial or personal circumstances of those seeking resolution and allows for a much more practical resolution in the long term. Anything can be agreed unlike in a Court judgment where the Judge only has limited powers as to what he can do such as order money be paid.
How do you select a mediator?
Parties agree on the appointment of a mediator. If they cannot agree, they can ask a third party (eg a mediation service provider) to select a suitable mediator on their behalf.
The parties can select the person they consider appropriate to mediate their matter, depending on the nature of the dispute. The mediator may be a lawyer or someone with technical expertise or experience in a particular sector relevant to the issues in dispute.