The definition of mediation taken from the Oxford English dictionary is “the intervention in a dispute in order to resolve it.”
It is not to be confused with the word meditate, the definition of which is “to focus ones mind for a short period of time, in silence or with the aid of chanting, for religious or spiritual purposes or as a method of relaxation.”
The meaning of these two words often gets very confused. Ironically there have been times during a mediation when I have thought that the benefits of having a tranquil moment might actually have been of great use! Misplaced use of the two words is amusing but the seriousness of mediation should not be over looked.
In the past three months I have had two mediations involving very different clients, different issues and very different mediators. The one thing that they both had in common was the successful conclusion and avoidance of what could have been an expensive and time consuming dispute.
So what is mediation?
Mediation is a process in which the parties in a dispute agree to spend some time trying to resolve it in a manner that is less confrontational and adversarial than the hearing of their dispute by a Judge in a court process.
The very fact that the parties agree on mediating a dispute is seen as a positive step as they may agree on little else other than a wish to avoid the costs and expense of a lengthy legal battle.
Mediation is not new and has been used as a dispute resolution process for years.
What are the advantages in using mediation?
- Informal process
A court process adopts a very rigid and structured format. The giving of evidence in court alone is daunting and an experience that many people find it hard to deal with.
Taking part in hearings (both during the progression of the case and at trial) are for some people like visiting another planet or as painful as a trip to the dentist. The clients case can often be discussed and argued in technical terms which need translating
Mediating a dispute removes formalities surrounding the court system. There is no need to give evidence, no need to comply with rigid court rules and the parties are largely free to adopt what style they choose and are able, through the mediator, to ask questions and examine matters in their own time.
The parties don’t even have to come face to face with each other. This is for many people idyllic as the worry of seeing their opponent (and who ever they may have with them) is totally removed with the mediation taking place in two separate rooms with only the mediator passing between them.
The adversarial ‘battle nature’ and formalities of the court process is removed which leave the parties better able to concentrate on the main issues.
Agreeing to mediate means that the parties are in control, not the court. The parties control the date for the mediation, the venue, the start and finish times, the terms of the mediation and who will be present.
The mediator is flexible and will often travel to an agreed neutral venue. This is in complete contrast to the court system where the parties have to travel to the hearing or trial.
The mediation is focused on the parties only. There are no other cases ‘going through’ on the same day which can often delay proceedings.
“You will never guess who I saw at the court today and what he/she was there for. ” These are words that you are less likely to hear in connection with mediation.
Mediations take place behind closed doors and involves only the parties and their representatives. The parties details are not posted on any court lists and are not made available to the press and there are no tape recordings of the discussions.
Information that is used in the mediation will not be used in any hearings should the mediation fail. This can help the parties feel more relaxed and encourage open dialogue that they may have been reluctant to engage in before. Most if not all of the communications that take place before arranging a mediation are dealt with on a without prejudice basis, as are the making of offers and other settlements. Most mediators will destroy their notes of the mediation.
- The mediator
Mediators are trained professionals who do not advise the parties but who carry out a facilitative role.
A mediator has a completely different function to a Judge, they do not scrutinise legal issues that might have developed between the parties or pass comment on the parties conduct. They are more interested in understanding the areas of clear agreement and how the parties will deal with issues that are not agreed.
In most cases the fees are split equally between the parties and paid after the mediation or in accordance with the mediator’s terms and conditions.
- Will this work for me?
If you have a dispute that is in its early stages or is progressing through the courts you can still consider mediation. To save costs and time, mediation should be considered as soon as possible in a dispute.
The courts system actively encourages parties to consider mediation and can make orders requiring the parties to look at methods of dispute resolution and avoid the court process, even if part way through it. This is important as cost penalties, tight timescales and increasing legal fees make mediation an attractive option.
Of course, there is always a risk that this approach won’t work for some people. One party may not agree to try this route, may not be in the right frame of mind or they may attend the mediation but have no intention of negotiating.
All of these factors should be taken into consideration if you are in dispute but if you are looking for an amicable resolution then I advise you not to delay.
For more information about Dispute Resolution, please contact our Dispute Resolution on 0161 475 7676.