We have previously blogged on mediation back in 2011. Its significance in disputes is now greater than ever. Pretty much every court and tribunal will encourage parties to disputes to have actively considered mediation and many run their own mediation schemes. Those of you in business will typically need to have reference to alternative dispute resolution (ADR) within any complaints/regulator process which will often be mediation.
To us at PainSmith knowledge of mediation is an important feature of litigating disputes. Particularly landlord and tenant disputes and those involving longer term leases whether residential or commercial. The reason being that whatever the outcome of a particular dispute you will have an ongoing relationship. Commercially parties are often sensitive to the issue of costs. Court proceedings today can become hugely expensive with the reality being that the costs outweigh the sums in dispute. Believe it or not that many lawyers, and certainly PainSmith Solicitors, are alive to this and do not want clients to find themselves litigating about costs. We have also blogged in the past as to some of the delays we are experiencing in the civil courts. Civil claims can typically often take 18 months to come to trial and whilst the process is ongoing every party is in limbo and there is never a guaranteed outcome. All claims have litigation risks which can be many and varied.
Hence why mediation is something all parties should think about at the outset. Looking to reach an agreement should not be seen as a weakness. It is a prudent and sensible step to be taken. Courts, tribunals and ombudsman’s schemes all encourage this approach and many will penalise those who do not consider properly this option. Most mediators will tell you there is no such thing as a dispute that cannot be mediated. The important thing with this process is that it is the parties’ process. You the parties’ contract with each other and the mediator as to the process you wish to follow. A lawyer versed in meditation will be able to help you through this and advise as to what steps or process should be followed, the skilled mediator will help to guide and facilitate this process. The route and procedure to follow is never set in stone.
So why show my hand at an early stage? Essentially this is a two way street. All litigation in England and Wales, whilst being adversarial, requires disclosure of the party’s case and all relevant evidence. When referring to documents this is everything, whether supportive of your case or not. So what is there to lose? We would suggest little. The mediation itself will be a confidential and without prejudice forum. Both parties should approach it in the spirit of being open. It is a real opportunity to lay out your case and for the other side to do likewise. Even where there are substantial differences as to fact and evidence the process can be used to narrow the issues. This of itself may be beneficial to all in that narrowing the issues may of itself help save substantial costs of litigation if the court is left with clear and defined areas to be determined.
Mediation is not limited to what the court or tribunal can award or order. The mediation essentially does not have a limit on what it can determine. That is a matter simply for the parties to agree. We have seen a commercial dispute over service charges which was subject to High Court proceedings where costs estimates for all parties totalled nearly half a million pounds where the parties mediated. The final agreement had no relation to what the court could order but agreed processes and procedures resolving the current dispute and to prevent further disputes in the future. It was clear thinking on the parties being aware that they did not want to find themselves in this position again and using mediation as an opportunity to agree a framework to prevent this.
ADR and mediation are very much buzz words for those dealing with consumers and the way you deal with complaints. All the various studies undertaken have shown that mediation works in increasing the chance of reaching an agreement and maintaining relationships. All of this can be vital to your work. Mediation, when successful, results in an agreement. This is a two way process.
We are always very happy to discuss the benefits of mediation with clients. David Whitney is an accredited Civil Mediation Council mediator with a particular emphasis on property mediations and is available to act as a mediator.