Many parties express an initial reluctance to engage in mediation as they think that mediation won’t be able to solve particular types of “personal” disputes, for example, probate claims where a dispute has arisen within a family about a Will or boundary disputes where neighbours are arguing about whether a fence or hedge is in the right place. They are also often concerned that offering to mediate will be seen by “the other side” as a sign of weakness or used against them if the matter does go to Court.
The reality is that mediation can and, more often than not, does work in such situations, sometimes precisely because mediation allows the parties to come up with a compromise solution which goes beyond what a Court would or even could impose. The fact that the parties have agreed to the mediation and actively contributed to the resolution usually means that they are all positively engaged in finding and then making an agreement work. An offer to mediate, rather than showing weakness, can demonstrate a confidence in your position while appreciating the realities (and numerous deficiencies) of litigation.
The chief advantage of a mediated settlement where there is inevitably going to be some continuing relationship between the parties (e.g. they will still be neighbours, or may still have family connections) is that mediation provides an opportunity for a fresh starting point for the parties. It would be foolish to suggest that mediation will wipe the slate clean but it does allow the parties to draw a line under their past issues, accept that they have all agreed to move on and, even if they will never be best friends, they can at least behave in a civil and neutral manner when they see the other party out and about.
Equally, it must be said that mediation is significantly cheaper and, particularly at the moment, substantially quicker than litigation; even modest claims can take over a year to come to Court and multi-track trials can take several years from issue of the claim to a “final” hearing. Mediation also avoids the inevitable “litigation risk” i.e. the chance that the judge may prefer the other side’s evidence on the day, or the proverbial wheel may come off in some unexpected way.
In my experience very few parties actually come out of Court happy with the result; the “winner” will often be aggrieved about the Judge’s assessment of some of their evidence and about how long and how much it has cost them to win the case. The “loser” will often look to find ways to frustrate or delay the implementation of the Court’s order, not least by lodging an appeal, or by making enforcement of any order, including any order for costs, as hard as possible for their opponent.
Every lawyer will be able to tell you horror stories where their cases that have finally been listed for a trial date only for them to receive a message from the Court the day before saying the matter has been vacated due to “lack of judicial availability”. Notices of Hearing now routinely warn parties that “a case may be released to another judge, possibly at a different court. The hearing may be removed from the list if no judge is available to hear it. Your case has been listed at the same time as several other cases … The Judge will decide the order in which cases are called …”. Even if you go ahead, and everyone turns up, you may well have to wait while other cases are dealt with or various “housekeeping” matters are dealt with in your case rather than making any substantive progress.
Compare that to a mediation appointment where, assuming the parties opt for an in person mediation rather than doing it remotely, the date and location for the mediation will have been arranged and secured and suitable facilities are usually available for the parties (often including arrangements for refreshments). In addition the parties will have the freedom and opportunity to discuss matters with their representatives, to take “time out” to think things through and can, in large part, control the pace of proceedings.
The key “takeaways” as regards mediation, as has been said before and elsewhere, are that it is:
- Voluntary – no party can (at present) be forced to engage in mediation or to reach a settlement but, like a “panic button” on a dentist’s chair, the fact that either side can walk away if they want to will actually often encourage them to stay to get things sorted out.
- Confidential – anything said in the course of a mediation, and any offers made, are confidential and “without prejudice”, so cannot be used against a party if the matter doesn’t settle and does have to proceed to court. If the matter is resolved, the Settlement Agreement can include non-disclosure clauses so the details of the agreement remain private to the parties.
- Creative – all parties have to contribute to the process and to any settlement; parties are encouraged to “think outside the box” and a settlement agreement can, and often does, involve elements that a Court could not or would not be able to order, or include matters which are not included in the original dispute, so that all outstanding issues between the parties can be addressed and, hopefully, resolved.
- Personal – it goes without saying that the dispute is personal to the parties, equally the best solutions will often come from the parties rather than being imposed on them by an outsider (i.e. the judge) who has no direct involvement in or personal appreciation of the issues. The parties are in control of the process and can decide whether they actually want to meet or be in the same room on the day. The process involves the freedom, if they wish, for the parties to meet (with or without the mediator), or for their respective representatives to discuss matters without their clients, or indeed, any permutation that the parties and the mediator believe will assist in moving matters towards a resolution.
In short, there are few civil disputes which go before the Court which cannot, potentially, be resolved by mediation rather than litigation and, as Churchill said, “jaw-jaw is better than war-war”; parties should be aware that litigation is inevitably expensive, takes far longer than expected and has an emotional impact for and, indeed beyond, the immediate participants.
If you would like to discuss how mediation could help you please contact the clerks on firstname.lastname@example.org or visit www.becketmediation.co.uk; several members of Becket Chambers are qualified civil mediators and would be happy to assist.