Mediation as an alternative to litigation
?Where there?s a hit, there?s a writ? is a good indication of the way many disputes arise but in an increasingly litigious society disputes will arise over any activity. Litigation is so costly that you need to consider other ways resolving disputes.
Mediation is a form of alternative dispute resolution (ADR), the other two main forms of which are negotiation and arbitration. It consists of the parties to a dispute appointing a neutral third party (a mediator) who helps them reach their own decisions by negotiation, but who has no authority to make any decisions with regard to their dispute (unlike in arbitration).
Mediation is fast and normally takes place within the court timetable, and so need not lengthen proceedings. So that mediation does not affect parallel court proceedings the parties should enter into an agreement to keep everything that is said confidential.
As part of the Courts? new approach to civil litigation there is pressure on parties to at least to show willing to consider mediation. In one recent case a party who did not and who won was not awarded costs as a result. There is no compulsion to mediate, though if it is proposed and you do not want to mediate you should give clear reasons why you feel it is inappropriate.
Mediation is particularly useful where the relationship between the parties is a continuing one or where they do not wish one dispute to sour what has otherwise been a satisfactory working situation. It will be particularly useful where the issues between the parties arise from a breakdown in communications, misunderstandings or differences on technical issues or where the legal issues involved are complex but the value of the claim is not great.
Legal representation is still normally essential for mediation, at least at the outset, so that the parties clearly understand the value of what they are arguing for or are considering giving up but again the cost of the representation should not undermine the benefit of avoiding court proceedings.
Mediation will normally save costs overall. However, it must be remembered that mediators? fees can be in the region of £1,500-£2,000+VAT per day, though usually mediations last only one day, even if the day goes on all night!
Before a mediation the parties will need to agree how the mediator?s costs are divided (usually it is 50/50) irrespective of the outcome of the mediation.
If you are considering mediation you will need to agree with the other party on the identity of the mediator. There are various reputable organisations which refer mediators ? the Centre for Effective Dispute Resolution (CEDR) is probably the best known.
Sean Egan is head of Bates Wells and Braithwaite?s Arts and Media department
t: 020 7551 7796; e: s.egan@bateswells.co.uk