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Mediation: what is it? Do you need legal representation? Why it’s important?

Posted
March 29, 2017
Business Litigation

Mediation is becoming increasingly more common these days, especially as the courts like to see that parties have demonstrated a willing to try and reach an agreement before any court hearings.

What is mediation?

Mediation is where the parties come together to discuss the issues with a mutual, impartial person, in an attempt to reach an agreement. The mediator will not take sides and will not give any legal advice, but will assist the parties in their decision making. Anything discussed during the mediation will remain private and without prejudice to the court proceedings, this means it cannot be relied on at court. If an agreement is reached, it will become binding and the mediator will usually draw up an order or agreement which can be enforced if it is broken. Mediations can take place in various forms, such as a telephone mediation or by using a private mediator. Telephone mediation is particularly common if you have opted to use the free courts mediation service after issuing a claim. Alternatively, you can use a private mediator, funded by the parties jointly. Parties can either remain in separate rooms and the mediator will go from room to room, or the parties can, at some point during the process, come together to discuss the issues face to face with the mediator present. This style of mediation is beneficial if there are lots of different issues and emotions which need tackling, or if one party is looking for an apology. It’s worth remembering that you do not have to be in the middle of court proceedings to use mediation. A private mediation session can be arranged before proceedings are issued. This is useful if the value of the claim is very large, but you are confident that an agreement can be reached, without the need of paying the high court fees, which are of course continually increasing.

How we can assist

Having legal representation will ensure that the process is as smooth as possible, and that the correct issues are discussed in the mediation. If the mediation is a telephone mediation with the courts, we can speak with the mediator so you don’t have to. If the mediation is a private mediation, we can prepare the relevant papers for all sides, liaise with the other party, arrange suitable timescales, advise you as to what issues we should focus on in order to achieve the best possible settlement for you and highlight these areas and your legal position to the mediator. We can also ensure that you have the best type of mediator for the dispute. Some mediators specialise in certain types of disputes, and we can recommend or find specific mediators for the dispute at hand.

Why is it important?

Mediation is important for a number of different reasons, such as: Cost and stress If a claim has been issued at court, the courts like to see that parties have attempted to settle the matter before trial. If the courts decide you unreasonably refused mediation, they could order you to pay not only your own costs, but all or part of the other side’s costs, whether you were successful in your claim or not.

Court proceedings should always be a last resort. Court is stressful, timely and very costly. Mediation can be just as effective, and is also legally binding, but it can be a fraction of the cost of taking a claim to trial. With business related claims you should not underestimate the effect of losing management time in the business.

Emotion

If there is a lot of emotion between the parties and you want to maintain some form of relationship with the other party then mediation is a good way to deal with disputes. If the matter goes to court, the court will not consider feelings, like you can in mediation, and will make an order based on the law and fact. This could cause the relationship between the parties to completely breakdown and be unrecoverable.

Flexibility

A mediation date can be agreed between the mediator and both parties, and can last as long as necessary. The courts are less flexible, settling down strict deadlines which must be complied with. If a party is unable to make any of the deadlines or hearings, a formal application must be made seeking permission to change the dates. This of course can be very expensive.

Speed

A mediation appointment can be set as soon a practicably possible. The parties will not need to deal with specific preparation, other than providing the mediator with copies of the documents. If the matter went to court, there will be lengthy directions, and it could take months, or even years until a final order is made. No matter how good your case appears on paper, things can go wrong at court e.g. if the witnesses do not perform as they should on their written evidence, or if the judge disagrees with your case. Settlement via a mediation (or any other process) gives you certainty so you can spend your time on other things. If you have a dispute which you think would benefit from using mediation, then please contact us.

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