For individuals who find themselves at the centre of a legal dispute, it is important to know that taking formal legal action may not necessarily lead to the best possible outcome. Alternative Dispute Resolution (ADR) methods such as Mediation are extremely effective and bring considerable benefits for the Claimant, including speed of resolution, reduced cost, confidentiality, and a greater affordance of control over the matter. Also, due to their non-adversarial nature, the dispute process is often less stressful for all concerned. Mediation provides a greater overall chance of a win-win outcome, leading to more satisfactory result for all concerned, and one which is more likely to remain in force in the long-term.
What is Mediation?
Mediation is an ADR method whereby an impartial person attempts to find a resolution to a disputed matter, without the involvement of the Courts. The Mediator will typically be trained in resolution skills and can work separately with the parties to a dispute. The Mediation process can be adapted to the needs of the situation, but often three rooms are used – one for all parties, and the other two for each party to meet separately with the Mediator. The Mediator will then ‘shuttle’ between the two sides seeking to find a common solution.
It is important to understand the Mediator will not make decisions on behalf of the individuals; they will remain impartial and endeavour to understand each parties’ separate perspectives. In addition, confidentiality is a vital component of Mediation, as it ensures both participants can engage in the process without reserve. The Mediator must ensure confidentiality for conversations in which all parties are present, and any separate private meetings.
When might ADR be useful?
Within the field of civil disputes, ADR is useful in many contexts, including (but not limited to), breaches of contract, boundary disputes, and contentious Wills or Probate disputes. Mediation avoids the extremely high costs associated with formal litigation in such matters. In one boundary dispute, Wilkinson v Farmer  All ER (D) 217 (Oct), the legal bill was more than £500,000, for what was effectively a battle over a strip of land, forcing the Court of Appeal to recommend Solicitors urge clients to consider ADR in similar situations.
There is a genuine concern that Mediation may not be useful when a great deal of acrimony exists between parties to a dispute, but this is where the skills of a Mediator are most valuable. An experienced Mediator will be able to guide you through the process and explain how common ground can be found for the best interests of all concerned.
What happens if one side refuse to enter into Mediation?
The courts do not and cannot force parties to a dispute to enter into ADR, but they may impose cost sanctions if there is deemed to be unreasonable refusal to give it a try. For example, in Bristow v The Princess Alexander Hospital NHS Trust , Master Simmons stated that refusal to mediate would lead to a costs penalty because not only had it taken three months to respond to a reasonable request for Mediation, but no satisfactory reason for refusing mediation was provided. Your Solicitor will advise you of the risks of refusing a request to mediate and whether Mediation is right for your civil dispute.
Settlement and enforcement
One of the common objections to Mediation is the decisions made are not legally binding; but the right to enforce can be achieved by the use of a Mediation Settlement Agreement. Such an agreement must be written in such a way as to be extremely clear and unambiguous, to avoid further disputes at a later date. To this end, it is often best practice for the Mediation Settlement Agreement to be drafted, reviewed, and signed by both individuals before departing the Mediation venue. This ensures the precise terms of the agreement are not lost or forgotten. If this is not practical due to time constraints, it is best recommended a shortened version of the terms of the agreement be drafted and signed by both parties on the day Mediation is concluded.
Getting the most out of Mediation
Mediation can not only lead to a faster, cheaper, win-win outcome for all concerned, it can preserve or even heal the relationship of the parties involved. For Mediation to be most effective, it is paramount that both sides enter into the process openly, honestly, and with a full intention to making it work. Before attending the Mediation session/s both parties should prepare, gathering all of the information needed, and any important documents pertinent to the case. Be respectful, listen to the views of the other party, and try to leave any anger or resentment at the door. And above all, listen to the Mediator; they will have dealt with many disputes and they understand how to work through often deeply ingrained anger and resentment. Remember, the Mediator will be seeking a resolution that works for you both; one that is fair and enables all parties to move on with their lives in the best possible manner.
Please note, this article does not constitute legal advice.
Hart Reade Solicitors are a full-service law firm with offices in Eastbourne, Hailsham, Polegate and Meads. We hold a Lexcel Accreditation from the Law Society of England and Wales. To make an appointment with one of our dispute resolution Solicitors, please phone our office on 01323 727 321.