Mediation is the most common form of alternative dispute resolution and is very effective when parties are willing to go to the negotiating table.
The benefits of mediation
There are many benefits to adopting mediation, including:
- To get a faster result than court proceedings
- Avoid unwanted publicity – it is private so there is more of a chance of the business relationship continuing when the dispute has been resolved
- It is flexible
- The parties are fully involved in deciding how the dispute procedure will work and are engaged in working out the solution
- A wider range of solutions can be considered than would be available from a court
Mediation settlement rate
The Centre for Effective Dispute Resolution (CEDR) 2020 survey show that there is a total settlement rate of 93%, so mediation is highly effective when it comes to settling disputes.
|Settle on the day of mediation||72%||74%||67%|
|Settle shortly after mediation day||21%||15%||19%|
|Total settlement rate||93%||89%||86%|
What is mediation?
There are various ways to skin a cat, a small dispute might be a mediation on the phone for an hour. The other end of the scale will be multi-party international disputes, which usually last a day but can take longer. Commercial disputes are generally a one-day mediation, traditionally in person at neutral venue but now often done online via a virtual meeting platform such as Teams or Zoom. The two parties agree a mediator or you can go to CEDR or the Alternative Dispute Resolution (ADR) Group to have one appointed.
During the mediation, a neutral third party, the mediator, assists the parties to reach a settlement by liaising between the parties. The mediator cannot impose a settlement on the parties and remains neutral throughout the process. It is therefore an assisted negotiation.
If the mediation fails because no solution can be reached, the parties are free to try another form of Alternative Dispute Resolution or to litigate. If an agreement is reached at mediation, the mediator will help both sides to produce and sign a binding contract recording the settlement.
When should you use mediation?
Mediation can happen at any point but there are three main stages where you mediation is popular.
- Before proceedings – before you have incurred court fees you can go to mediation. Can you negotiate an agreement before the button is pressed to go to proceedings?
- After court pleadings (Claim and Defence) are done but before the substantial costs of gathering your evidence to prepare for trial: witness statements, document disclosure and any expert reports.
- Awaiting trial date – whilst awaiting a date for trial, you can see if you can negotiate a settlement to avoid the significant legal costs of attending a trial.
A stay of mediation can also be granted by the court (usually a month) to try to mediate. This is most common after the Case Management Conference sets the directions to trial, but can happen at any time except where a trial date is threatened.
The process of mediation
Mediation does not get you a determined outcome. The mediator is to help with negotiations. The mediator can be a go between different rooms/private meetings, and can quite often act as devil’s advocate, to ask difficult questions. They can help change the mindset of those in the dispute.
There are various different styles of mediators. Some mediators are more conciliatory and some more facilitative.
Both methods work in different situations. Sometimes you might need a mediator to tell you some hard home truths but on other occasions where a different approach would be required to help bring both sides to a resolution.
Why use Blake Morgan?
We have qualified in-house mediators as well as experienced and knowledgable mediation advocates who can advise you throughout a mediation process. They know mediators in the industry and often know their style. We help clients by using that expertise and experience to get the right mediator for your dispute and a result that works for all parties.
Part of the skill and experience that we bring is that we know how mediations work, we prepare our clients properly and we make sure they know what to expect. We ensure our clients are well prepared for mediations: knowing what to expect on the day and what information to have to hand is critical to a successful mediation outcome. Feedback that we have had is that our clients have loved the fact we told them how the day would go and that is exactly how it panned out.
The future of mediation
During the coronavirus pandemic a lot of mediations went virtual with continued success. Face-to-face and online mediations both have their merits. Online mediations can save on travel, costs and time. However, getting people in a room is a sign that they are committed to negotiating and can help with tackling thorny issues. Hybrid mediations with some people in the room and some only able to attend virtually could be the way forward. Different disputes will require different strategies. Speak to our mediation specialists if you are looking at mediation to resolve a dispute.
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