Lawyers are often stereotyped as being interested in prolonging an expensive Court action. More often the opposite is true.
Lawyers know that Court cases are expensive and that clients are fearful that legal costs could escalate to an intolerable level. Lawyers interested in preserving long standing relationships with their clients will often recommend alternative dispute resolution options - mediation being one.
Mediation allows parties to remain in control of their own disputes and outcome while facilitating parties to tell their side of the story to the other party and the mediator.
What exactly is mediation?
Mediation is one form of alternative dispute resolution with others including Expert Determination and Arbitration.
In essence mediation is an informal conflict resolution process brought before an independent, neutral third party – the mediator. Mediation gives the parties the opportunity to discuss their issues, clear up misunderstandings, and find areas of agreement in a way that would never be possible in a court case.
Mediation is often voluntary or it can be ordered by the court after proceedings have been commenced but before the dispute goes to trial. Typically the mediator has no authority to make a binding decision unless both parties agree to give the mediator that power which is dealt with in advance of the mediation commencing.
When parties should consider mediation
In practical terms mediation is likely to be quicker and more cost-effective than the more formal processes of arbitration or litigation (in Court). Mediation should be considered as early as possible after a dispute has arisen. It is particularly appropriate where a dispute involves complex issues and/or multiple parties.
In addition, mediation can be implemented prior to, or in conjunction with, other forms of dispute resolution such as arbitration or court proceedings. In circumstances where privacy and confidentiality are important, mediation enables parties to preserve these rights without public disclosure. This often leads to more satisfactory outcomes for both parties.
Advantages of mediation
There are many advantages, in summary these can be described as:
Where mediation is not the solution
With mediation a resolution is not guaranteed. There is the potential that parties may invest time and money in trying to resolve a dispute out of Court, and still end up having to go to Court. Ultimately it is a call that should be made in consultation with an experienced lawyer.
Mediation should not be a solution in circumstances where it is not appropriate. For example where a Court remedy is necessary such as an injunction or seeking specific urgent Court orders.
It must also be remembered that the mediator has no power to impose a binding decision on the parties. Therefore even after the mediation the matter may be unresolved and you may still need to go to Court. (This is where the selection of the Mediator requires careful consideration by all parties).
Fundamentally, mediation rarely produces a satisfactory resolution unless both parties to a dispute are committed to a resolution.
Mediation is an alternative to financially and emotionally costly and time-consuming processes such as using the Court system. It is suitable for people who are willing to communicate with the other party and attempt to better understand and settle their dispute with the help of a trained third party.
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