Mediation – the Real Alternative to Litigation
|
Everybody experiences problems from time to time. Business people will always encounter problems - seemingly it is impossible to run a business problem-free.
Issues with staff and business partners, supply and contractual performance concerns and the age-old problem of simply getting invoices paid are commonplace.
Most problems can be solved without involving lawyers, but there will always be those intractable problems that require the skill, expertise and experience of a lawyer to resolve. |
Mediation should be part of the lawyer’s dispute resolution armoury.
What is mediation?
It is a form of Alternative Dispute Resolution (ADR) and is intended to be a fast and cost-effective alternative to litigation.
How does it work?
Mediation is a facility that gives the parties the opportunity to try to settle their dispute. Its real benefit is that it gives the parties the chance to reach an agreement that they feel content with, having gone through a thorough negotiation process. Litigation, on the other hand, results in a judgment in favour of one party, but the outcome of a trial is always unpredictable. Mediation takes the “litigation risk” out of the dispute resolution process.
What is the Mediator’s role?
The mediator’s job is to facilitate negotiations. The mediator does not act as a judge. It is not the function of a mediator to give any finding or determination of any point at issue between the parties.
What format does the mediation take?
There is no particular format for any mediation, but they will often start with the parties in an open forum. The mediator will explain how the mediation is to proceed and what his function will be, then the parties will have an opportunity to briefly present their points of view. This session can sometimes become heated and is often regarded as an opportunity to let the parties vent their anger before getting down to the business of negotiation. This can be useful, but part of the mediator’s skill is to assess when to bring the open session to a close.
After the open session, the parties will break off into separate rooms. The mediator will then spend time going back and forth between the parties in private sessions. During these sessions he will be getting people’s views and different aspects of the dispute. Nothing that is said to the mediator in these private sessions can be passed onto the opposition unless the mediator has been given permission to do so. Everything therefore said to the mediator in the private sessions is confidential.
The mediator will continue going back and forth between the parties until he believes a point has been reached where the parties’ positions have come close to each other and there is a possibility of agreement.
The mediator might guide the parties at this point as to what they may each have to concede to bring about a resolution. If agreement is reached, the mediator may bring the parties together in a final open forum.
The parties’ representatives will then work together to prepare a compromise agreement for the parties to sign.
What happens if the mediation does not result in settlement?
The parties are free to proceed with their litigation and to go onto trial.
Can either side use the information given during the mediation in litigation?
The answer to this is no. Everything said and divulged during the course of the mediation is confidential and cannot be used outside of the mediation by the parties.
In brief what are the advantages of mediation?
- It is confidential
- It is considerably less expensive than taking a case to trial.
- It takes away the “litigation risk”.
- The parties reach their own agreement.
- It is possible to be flexible and imaginative in reaching a resolution in a way that a judge sitting in a trial cannot be. It is possible at mediation to reach a commercial settlement that a trial judge could never order.
- It produces an outcome that the parties have agreed to.
Does mediation work?
Silverman Sherliker’s mediation team has considerable experience collectively of representing clients at mediations. Head of Litigation, John Abbott has represented clients at 15 mediations, of which only two failed to achieve a successful outcome. So yes, mediation does work, but sometimes a little imagination and an open mind may be needed to make it work.
For more information please contact: John Abbott on jca@silvermansherliker.co.uk, Richard Pearlman on rhp@silvermansherliker.co.uk, James Robertson on jvar@silvermansherliker.co.uk, Stefan Arestis on sa@silvermansherliker.co.uk or call 020 7749 2700. |
