It may surprise you to learn that relatively few disputes proceed all the way to trial. The vast majority will settle along the way using some form of Alternative Dispute Resolution (ADR) and the court actively encourages this approach.
There are many different forms of ADR and a particularly popular option is mediation. This is a confidential and flexible process using an impartial third party (the mediator) to work towards achieving a settlement. Our Construction team has recently looked at what you should and should not do when you receive an offer to mediate and valuable tips on how to prepare for a mediation. In this post, we dispel five common myths surrounding the mediation process and what it means for resolving your dispute.
- “It does not matter who the mediator is”
There are lots of different mediators with different styles, tactics and backgrounds and it is important to find a mediator with the correct ‘fit’ for your type of case and the personalities involved if the mediation is to be productive. Do your research and read other people’s reviews of potential mediators but certainly do not underestimate the importance of this point.
- “It is a sign of weakness to offer mediation”
Absolutely not. The benefits of mediation are wide-ranging and include the preservation of a commercial relationship, saving the costs that would otherwise be spent on litigating and narrowing the issues in dispute if the case does not settle. The court actively encourages parties to explore ADR and can penalise a party in terms of costs if they unreasonably refuse an invitation to mediate. Ignore it at your peril!
- “The other side is too entrenched in its position for the mediation to be productive”
You may be surprised. Whilst it is not uncommon for parties to ‘dig their heels in’ during the course of litigation and focus on the trial, mediation focuses the parties’ minds on achieving a resolution by exploring a range of options. It is this flexibility that makes mediation so popular. Even if a resolution is not achieved on the day, parties are often surprised by the significant progress that has been made and a settlement can often be reached shortly after.
- “If we make any offers or concessions at the mediation the court will think that we have no confidence in our case”
The mediation process is confidential and will be held on a ‘Without prejudice’ basis. This means that anything that is said at or produced for the mediation cannot be disclosed in the course of proceedings if a settlement is not achieved. It will not sway the court’s perception of your case.
- “Trial is coming up shortly – it’s too late for mediation now”
It is never too late. Whatever the reason for not considering it earlier in the proceedings, if mediation achieves a resolution and avoids the risks and costs associated with a trial, it will have been worthwhile. Even if the matter does not settle, it is important to demonstrate to the court that you have at least tried (see point 2 above).
We have dispelled some of the myths, now what about the truths? We would be interested to hear your comments about your experiences of mediation, so please feel free to comment below.