Mediation, Not Litigation
Mediation is the process whereby two or more people involved in a dispute come together with the help of a neutral third person to try and find a fair and workable solution to their dispute. This book explains how mediation works, and the advantages and disadvantages of mediation.
Mediation has a high success rate and is quicker than going to court, and certainly less expensive. It is also more satisfactory, as it can result in an agreed settlement over which you have total control. Whilst court proceedings polarize and destroy relations with the other side to a dispute, mediation allows you to get your point of view off your chest and then allow your relationship to continue.
The mediation process is flexible and informal, and has the objective of finding a solution which both parties can live, with rather than deciding rights and wrongs. As it will be an agreed solution, it is more likely to be complied with than if it had been imposed by a court. Mediation looks to the future and not to the past.
The aim of a mediation is to allow the parties to reach a solution themselves and not for the mediator to impose a settlement on them. If this is not possible and agreement cannot be reached, the mediation will come to an end and either party is free to start court proceedings, if they so wish. All that was said in mediation is confidential and cannot be disclosed to the court in subsequent proceedings.
Most disputes can be mediated, including those involving contracts, accident claims, debts, business ownership, employment, and family disputes over finances and children following divorce.
If you are in a dispute which you have not been able to resolve directly with the other side, this book will explain how mediation can be the answer and why you should consider it before court proceedings. It deals with the steps to be taken to prepare for the mediation, the mediation process and how the mediation is likely to be conducted, and finally finalising and enforcing the agreement reached.
This is book is intended for those involved in a dispute. We all have them. It could be with a neighbour, with someone who has sold you goods, a customer, supplier or just someone who owes you money. Your dispute could be a family matter, possibly following divorce or on the breakdown of a relationship, when it has to be decided who will have what, or to do with the arrangements for your children. The dispute could be a business dispute or over almost anything and it has made you very angry. You want justice and you want your rights. But you do not want to get involved with spending a lot of money and you do not want months or even years of stress and worry dealing with the matter. You want the dispute resolved and then to move on with your life.
Your first thoughts in this sort of situation are likely to be aimed at lawyers and the courts. The courts are of course there to decide disputes and there are no end of lawyers who will be delighted to take on your case. One problem with this, as most people will be aware, is that lawyers are expensive and the court process (which can also cost a considerable sum of money in court fees) can be intimidating for a litigant in person, and is certainly slow and frustrating. And you can never be entirely certain whether you will win or lose. The courts do not necessarily make a decision on what is fair and right, but based on the law applicable to the facts of your case.
What follows is in effect going back to the basics of resolving disputes. It is the route which should be followed in the majority of cases before running off to court. The cost and delay of court proceedings, which usually result in no real winner and only losers, makes court action the solution of last resort. One reason for this is that the court process in the UK is adversarial and tends to pour fuel on a smouldering fire rather than quench it. Following a court case, feelings of anger towards the other party can go on for years. There are better and more sensible ways of resolving differences, which is what this book is all about. Ways which are less expensive, easier to navigate, totally confidential and more likely to provide a result which everyone is happy with. This is mediation, and the sensible and ever increasingly popular method of resolving a dispute, which judges and the courts now encourage.
Most people will agree that if you are in dispute with anyone, about just about anything, the best way to resolve it is to sit down with them and talk it over in an attempt to find a settlement. That is indeed the best way, but it is not always possible. Very often, the matter you are in dispute over has resulted in a breakdown of the relationship with the other person.
There can be little prospect of reaching agreement between yourselves, for a number of reasons:
∙ One or both of you have adopted an entrenched position from which it is difficult or impossible to retreat.
∙ The demands of one or other are so excessive and unreasonable that no accommodation or compromise appears possible.
∙ The demands a one party may be impossible for the other party to agree. Another solution needs to be found.
∙ Personality clashes have developed that make it hard for the parties to communicate on any level of understanding.
∙ One party has taken a defensive position because of potential third-party influences. ∙ There may be cultural problems, for example the fear of ‘losing face’.
Sensible discussion is now impossible. You and they have adopted entrenched positions, and you’re not going to move from it. There has been a breakdown of trust and, apart from that, the other person is a selfish grasping rat and it would be a complete waste of time.
The reality is that it would not be a waste of time. It has to be accepted however that the chances of two people reaching an agreement when the relationship between them is of distrust and animosity are slim, but that should not mean that a sensible solution is impossible. What it does mean is that they need help, and that help is now readily available. It is called mediation, and the help needed comes from a trained mediator. It is a process where two or more people involved in a dispute come together with the assistance of a neutral third person to try and find a fair and workable solution to their problem. It allows both parties to have their say, which is often a prerequisite to reaching a reasonable compromise and settling the disagreement. Once you and they have had the opportunity to tell each other how you feel and why you believe that you have been wronged, and heard the other’s point of view, you are likely to be able to work out a settlement together.
Unlike the courts, the mediation process is flexible and informal, and has the objective of finding a solution which both parties can live with, rather than deciding rights and wrongs. As it will be an agreed solution, it is more likely to be complied with than if it had been imposed by a court. Filing a court action will always be seen as a hostile act, which will harden attitudes and make settling more difficult.
The consequence of court proceedings will almost always be the annihilation of normal relationships between the parties. The legal system is designed to be adversarial, and even if you were not on bad terms with your opponent beforehand, you can guarantee that you will be after court proceedings. The relationship between parties who have managed to agree their differences without beating each other over the head is more likely to survive than where they have won or lost following a court hearing and had a settlement forced on them by a judge.
The advantages of mediation go on and on. By giving you the opportunity to meet face to face with the other party, you are able to speak your mind, fully explain your position and get your grouse off your chest. It will lead to better communication with your opponent, which can only help both of you to resolve the issues between you. You will get a better idea of the strengths and weaknesses of your case and that of your opponent, and help you to understand any underlying issues or problems which may have led to the dispute. Most important also is the availability of creative solutions, which would not be available from a court. And all this at a cost far less than if you had gone to court to decide the matter and impose a settlement on you both.
Mediation therefore looks to the future and not to the past. A mediator will encourage you and your opponent not to try and score points by blaming the other for what has happened in the past and led to the dispute, but to concentrate on finding a solution and settlement to put it all behind you. The aim of the mediator is to assist the parties to reach a solution themselves and not for the mediator to impose a settlement on them. If this is not possible and agreement cannot be reached, the mediation will come to an end and either party is free to start court proceedings, if they so wish. All that was said in mediation is confidential and cannot be disclosed to the court in subsequent proceedings.
Referral of a dispute to mediation can result from an agreement between the parties to mediate, a court rule or pre-action protocol, recommendation from a judge or clause in a commercial, employment or industry sector contract.
The principal features of mediation are therefore that it is quick and easy to set up, inexpensive, flexible and unlike litigation puts you in control and allows you to devise solutions not available to a court.
This book explains the mediation process from start to finish: the advantages and disadvantages of mediation and when it might or might not be suitable, how to choose a mediator and what happens during a mediation, through to writing out an agreement to make the agreement reached legally binding.
Chapter 1. Is my case suitable for mediation? 5
Advantages of mediation 8
Disadvantages of mediation 9
Other considerations 10
Chapter 2. Alternatives to mediation 12
Hybrid arbitrations 13
Collaborative process 14
Expert determination 15
Small claims court 16
Chapter 3. Agreeing to mediate 17
Chapter 4. Appointing a mediator 19
The role of the mediator 19
Choosing a mediator 20
Chapter 5. Preparing to mediate 22
The agreement to mediate 22
Preparing your evidence 23
The mediation statement or case summary 24
Chapter 6. The mediation overview 25
Lawyers and other professionals 27
Chapter 7. Conducting the mediation 30
The parties’ opening statements 30
The caucus 33
Chapter 8. The settlement agreement 38
Enforcing and varying your agreement 39
Chapter 9. Family mediation 41
Legal Aid 42
The MIAM 42
The family mediation process 43
In court mediation 44
Chapter 10. Employment mediation 46
Chapter 11. Business disputes 49
Further Help 50