To mediate or not to mediate?
Commencing Court Proceedings or other formal proceedings against a party who you are in dispute with can sometimes seem like a daunting prospect. It might seem as if you are about to embark on a process which will cost you in terms of legal fees and your own valuable time.
However, for many disputes mediation is a very cost effective, timely and productive way forward to try and resolve the dispute or parts of it.
Mediation is a confidential and informal way of exploring the dispute and the issues involved with a view to coming to a resolution. As long as both parties are willing to go along with a relatively open mind mediation can be extremely helpful. It will often be the first time the parties have got together since a dispute has started and this can sometimes assist the process, with the support of the lawyers.
The process is flexible as it can be held in one party’s office or a neutral location. The mediator will be agreed by the parties in advance and many barristers can also act as mediators. This is useful if the dispute involves a particular type of law. The mediator will be sent a bundle of relevant papers to assist him or her with the understanding of the dispute together with each party’s position in a written statement. At the mediation itself, there will be a mixture of open sessions and breakout sessions where the mediator can talk to each party on a confidential basis if needs be. The mediation will usually be held on a “without prejudice” basis which effectively means tat the Court, if proceedings are necessary following a mediation, will not be told about what happened at the mediation so parties can properly explore settlement options without fear that they will seen to be giving something away.
Additionally, the Courts are very keen for parties to explore alternative dispute resolution methods to try and reduce the parties’ and Court’s costs. The Court, in some previous cases, have penalised one party to a dispute which refuses to mediate by taking their conduct into account when deciding the costs at the end of the formal proceedings so in many cases it will be important to consider mediation seriously before legal proceedings are launched.