You may have heard the term mediation used frequently when it comes to matters of dispute resolution, but what does it mean exactly?
Whether in matters that are personal or professional, many of us may become embroiled in conflicts and disputes at some point in our lives. Sometimes, these conflicts escalate and turn into serious matters that feel impossible to resolve peacefully and amicably without the aid of legal intervention.
However, taking disputes to the courts is not always a feasible, cost-effective or entirely necessary course of action. This is where mediation as a form of Alternative Dispute Resolution (ADR) comes in, presenting an opportunity to reach a resolution in terms that are fair and clear. But what exactly is mediation, and how might it be useful to you?
What is mediation?
In legal terms, it is defined as a flexible, voluntary and entirely confidential form of ADR.
In cases of mediation, a neutral third party is responsible for facilitating productive discussion and assisting parties to work towards a negotiated settlement of their dispute. It is the parties who retain control of the decision of whether or not to settle and on what terms to do so.
In what situations is mediation a useful course of action?
You may be wondering in what instances mediation may be a useful course of action.
Serious disputes, whether at home or in the workplace, can indeed be solved via litigation (the process of taking a dispute to the courts of law). However, disputes that come before the courts are most often settled before trial anyways, with many being resolved before proceedings are even issued.
Mediation is one of the key strategies for resolving such disputes outside of court, enabling participants to avoid the stresses, pressures, publicity and associated costs of litigation proceedings.
What makes mediation a worthwhile form of dispute resolution?
Unlike litigation, which focuses on legal rights, wrongs and duties, mediation is concerned with the needs and interests of the parties.
In a court of law, a judge is severely restricted in regards to what they can award or rule, as they must remain concerned solely with the pleaded cases, the evidence and the intricacies of the law.
Mediation, however, is not restricted in this sense whatsoever, and oftentimes the neutral third-party can help both sides to address issues that go beyond the concerns of the law, such as commercial and emotional grievances. As such, the solutions that can be reached by way of professional mediation can be far more creative, fair and overall more beneficial to both parties than those that may be reached via litigation.
Additionally, this form of ADR can function as a way of resolving issues privately without the presence of unwanted parties, allowing both individuals and businesses to preserve their public integrity. All things considered, it is clear how mediation can help parties to reach a resolution with considerably less hostility and conflict, and one that is more beneficial to all concerned.
Seeing as though you do not forfeit your litigation, tribunal and arbitration rights by trying to find a resolution via mediation, you ultimately have nothing to lose. If parties fail to reach a settlement by way of mediation, then they are free to proceed with other processes.
Working with a mediator
If you think mediation could be a productive course of action for your dispute, it is essential that you seek out the services of a mediator with professional qualifications.
Unfortunately, mediation currently has no statutory regulation, so it’s important to find a mediator who is a member of regulated professional bodies such as the Law Society, Bar Council, etc. This will give you greater confidence that minimum standards are met by your mediator.
Most importantly, your chosen mediator should possess a strong understanding of dispute resolution and be equipped with the skills required to document the settlement once reached. Experience within the field of law that is concerned with your case is of course beneficial but is not required.
Seeking extra support from a solicitor
You do not technically require a solicitor to navigate mediation, but it is certainly highly recommended.
Whilst your mediator can provide general information regarding the law and legal system, they cannot provide legal advice. By engaging a solicitor, you can benefit from legal consultation throughout the course of the mediation process.
We have a wealth of experience in helping clients to navigate the process of mediation. Our solicitors can provide essential legal advice before and between mediation sessions, ensuring your best interests are protected.
When is mediation an unsuitable approach?
Not every dispute calls for mediation, however. In the following instances, it may be an unsuitable approach:
- In cases where there is no dispute, e.g. debt collection.
- In cases where an injunction is required. This may be to prevent publication of a statement or to protect someone from violence, for example.
- In cases where there is no desire to settle on the part of either or both parties.
Looking for support and guidance with alternative forms of dispute resolution such as mediation? We can help. Simply get in touch today.