What is Mediation?
What it is
Mediation is a key form of Alternative Dispute Resolution (ADR). Alternative here means an alternative to having a decision imposed by a judge in court.
Mediation is a consensual process, based on self-determination that involves the participants in the dispute, together with their lawyers, advisers, or supporters, if they have any, meeting with a neutral third person. The mutual aim is to find a resolution to the dispute or problem that the participants face.
It is a confidential and without prejudice activity that allows the participants to explore the full range of potential solutions in a safe environment. The neutral, or mediator, may encourage the use of principled negotiation, based upon reason and objective criteria. The mediator may reality-test the perceptions of fact, advantage, risk, and cost; and thereby assist the participants to find a mutually acceptable solution.
What is Mediation?
What it is not
What it is not Mediation does not involve the mediator telling the participants the solution - or even venturing suggestions. It is for the participants themselves to find, with the mediator’s assistance, and to agree a solution that meets their needs, concerns, and in remains with the participants. It does not involve the mediator telling the participants what a judge may or will do, or who is right or wrong. Nor does it involve the mediator assessing the merits of the case: after all, the mediator may not be aware of all of the information, or even the relevant law.
Mediators are commonly not lawyers and participants generally bring their own advisors, mediators do not need to be experts in the legal context of the dispute.
Why mediation is cost effective
The reality of a dispute
If you have a dispute, the unfortunate ones amongst you will have had the distinct, unpleasant experience of having to instruct a Solicitor.The Solicitor would normally be instructed because either a/ you were pursuing a customer for payment perhaps, or b/ you were being pursued by a customer and had received a Solicitors letter threatening you with the list of many bad things be heaped upon you if you did not give-in, and acquiesce to the demands outlined by the customer. Either option listed above will cost you lots of sleepless nights, lots of reviewing of the evidence (‘there is nothing wrong with the installation’) and cost you lots of money!
The facts of life regarding a dispute (after my 30yrs plus of experience) are this: The costs awarded against the losing party far outweigh any damages awarded by the Court, e.g. if a customer is suing you for £15,000.00 the matter would probably take 12 - 18 months to get to a final hearing and both parties would then have paid at least £30 - £40K in Legal and Professional Fees. Usually, the costs are borne by the unsuccessful party, therefore the unsuccessful party would find themselves with a bill of £60 - £80K in costs, plus any damages awarded.
No the best option by far is Mediation. Mediation is quick, intense and inexpensive. The Solicitors do not care for Mediation, as it affects their Fee earning power. But Mediation works and it works on the principle of ‘jaw jaw’ - the Mediator facilitates discussion between the parties and a resolution is found in 99% of cases. Whereas Litigation is ‘war war’, where you are at war against the other party, and the Solicitors are just whipping-up the troops. (and earning fees).