Why, you may be wondering, would a barrister with 28 years’ experience of civil litigation and the adversarial process want to talk about mediation? Surely the whole purpose of barristers, and indeed lawyers, is to let people have their day in court and to demolish the “other side”?
The fact of the matter is that civil litigation is often expensive, time-consuming and unpredictable and often result in a Pyrrhic victory (i.e. it costs more than it is worth); a successful party will often recover only a percentage of their actual costs, or the losing party may not have the means to satisfy any judgment, let alone the costs awarded against them. A losing party will, usually, have to pay the judgment against them as well as (some/most of) the other side’s costs in addition to their own costs.
At a time when the court system is, frankly over-loaded and under-funded, it can often take months, if not years, for a case to come to trial, especially if it has been allocated to the multi-track (i.e. a higher value or “complex” case taking more than a day to hear) with the costs, to all parties, climbing steadily throughout. And that’s before you consider satellite litigation and the appeal process!
Your lawyer will have told you all of this at the outset but the deeper you get into a case and the more emotionally invested, committed and entrenched the parties become (and the higher the costs get), the more difficult it is for you and the other side to extricate yourselves.
Mediation doesn’t always work (although, generally, civil mediation has a success rate in the region of 85%, while family mediation figures are lower) but provides an opportunity to break out of the cycle of increasing costs and stress. The parties’ “investment” in the settlement (replacing their financial and emotional investment in the fight) can provide a sound basis for a civil and productive way forward for both parties. Even where it is not successful it often allows the issues between the parties to be narrowed down, which simplifies any subsequent litigation.
Bullet Point “Takeaways”
- Mediation is “Better” than LitigationHowever, mediation will often result in settlements which include elements which would be more than a Court could award (e.g. an apology or a review of processes to prevent a similar situation occurring again) or resolves several aspects of a dispute between parties which would otherwise involve multiple sets of proceedings.
- Mediation can apply in a whole range of circumstances covering all types of civil disputes, e.g. boundary disputes, probate, employment, contract and commercial disputes, clinical and professional negligence, etc.; usually if it can be litigated, it can be mediated!
- Civil Mediation is Voluntary (at the moment).You cannot be forced to agree a settlement; a court case will impose a resolution on the parties, a mediation allows the parties to agree a solution. A court decision will often leave both parties feeling dissatisfied; a mediation should leave both parties feeling they have achieved something positive and found a way forward from and out of the dispute.
- You cannot (at the time of writing) be required to attend and engage in mediation – the fact that the parties have agreed to mediate is, of itself, a positive demonstration of their desire to resolve the dispute and to move on with their lives; they just need to find the “right” solution.
- Mediation is the Parties’ Process.
- Mediation is a “facilitative” process – the mediator is there to help the parties find their own solution to their dispute; the mediator cannot impose a solution and is not there to judge the case or decide the merits of the parties’ arguments. However, if the individual parties have been open with the mediator about their position and what they want (or don’t want) from the case, then the mediator may be able to identify some common ground between the parties upon which an agreement can be built.
- Mediation is ConfidentialAny discussions and offers made by either side are confidential and cannot be used in any subsequent litigation; parties are encouraged to be open and realistic about their case (with themselves and the mediator) safe in the knowledge that any “concessions” cannot be held against them in the future.
- Any discussions between a party and the mediator are confidential and private and will not be disclosed to the other side unless or until the party has said it can be disclosed. However, if the mediator knows what a party considers their most important (and least important) elements of the dispute and of any settlement, the discussions can be focussed on the important factors. Often the parties can have different priorities which can lead to a solution where those priorities can dovetail together and complement each other, giving the parties a “win/win” result.
- Mediation is (relatively) Cheap
- Parties are free to decide whether they take representation to a mediation or not, but the cost of the mediator will be shared between the parties; in any event, half a mediator almost always costs significantly less than the cost of going to trial!
- Mediation is QuickCivil mediation usually involves a day (or half a day) and the matter is either resolved or not, although parties can sometimes agree a settlement, based on the progress made at mediation, shortly after the mediation.
- As indicated above litigation takes time – a relatively simple multi-track case can take 18 months or more to come to trial (from pre-action conduct through the exchange of pleadings, case management, filing of evidence to the hearing), even “fast track” trials (i.e. hearings dealt with in a single day) can take over a year from claim to hearing. Final hearings are sometimes cancelled by the court (often a day or so before the hearing) and then re-listed six months later. And then the losing party can appeal!
- Mediation is Binding
- A mediation settlement once agreed will be reduced to writing by the parties or their representatives and signed; it becomes a binding contract so that, if either party seeks to go back on the agreement, the other party can rely on the agreement (and sue on it) rather than having to re-litigate the original dispute.
In short, parties should always consider mediation before embarking on and having started litigation (and it may be in time that civil mediation will be mandatory, either pre-issue, as it is with many matrimonial disputes or as part of the case management process). If mediation works, it will usually have saved the parties a significant sum and considerable stress. If it doesn’t (and particularly if a party refuses to engage in mediation) then that can be a matter that the court can consider when considering the question of costs.
Members of Becket Chambers can provide assistance with parties attending mediation; in addition Becket Mediation (www.becketmediation.co.uk) has a number of Civil Mediation Council-approved civil mediators. Please contact the clerks on 01227 786331 to discuss your situation and requirements.