For those involved in a legal disagreement, whether in relation to a financial settlement or child arrangements following divorce, employment matters, a property dispute, or any other civil matter, the thought of seeking a resolution through the court system can be deeply intimidating, and not to say, costly. Thankfully, there is a route open to most disputing parties which in many cases can be more effective in finding a resolution, and less expensive and stressful. This latter point should not be underestimated; court cases can become unnecessarily divisive and lead to damaged relationships.
In any legal matters involving children, it is even more essential to avoid turmoil and resentment any more than is necessary. Alternative dispute resolution (ADR) methods have now become a mainstay of approaches by Solicitors because they put the needs of the entire family front and centre and seek to provide a more balanced perspective based on the ongoing requirements of all parties concerned.
What is ADR?
ADR is an approach to dispute resolution which does not involve the courts and is non-confrontational by design. There are various forms of ADR, but for the purposes of civil matters, the primary method used is mediation.
Mediation is designed to be flexible and confidential while being entirely voluntary. The process is overseen by an impartial ‘mediator’ who will, in the case of ‘facilitative mediation’ assist the parties to the dispute to find their own resolution and will not impose his or her decisions on the parties.
The beauty of mediation is its flexibility. It can be utilised in relatively simple matters to complex disputes or appeals.
Why consider mediation?
There are a wide range of contexts in which mediation is suitable, including where:
- The cost of litigation would be too great relative to the amount of costs involved
- A fast resolution is needed
- Where the parties are open and amenable to discussion
- The parties are under significant emotional pressure
- Confidentiality is required
- Previous settlement discussions have been unsuccessful
ADR may not be suitable if a point of law needs to be resolved, there have been allegations of fraud, there is no realistic chance of mediation being successful, or if there has been a likelihood of one party by another.
Mediation conveys other benefits to those party to a dispute, including the preservation of relationships, the affordance of control and autonomy over the process to those in dispute, outcomes which are not possible in court may be reached, clients are actively involved in the process and are not mere observers, it is culturally sensitive, it is ‘low-risk’, and even if not fully successful, can play a vital role in narrowing the range of outstanding issues and allowing a forum to understand each other’s perspective.
What is the process of mediation?
The process of mediation commences when there is agreement to the parties involved that mediation should be pursued. This may be recommended by the courts, or due to a clause in a contract which requires it, should a dispute occur. In relation to family matters, for those seeking court intervention, in most cases the parties will need to attend a Mediation Information and Assessment Meeting (MIAM). During the MIAM, a mediator will explain the process and check to ensure the case is suitable for mediation. Following the MIAM, the parties to the dispute will also be able to make an informed decision on whether the mediation process is appropriate. The courts insist on the MIAM process in most cases, as not only does it alleviate pressure on the court system and on costs, in many cases, the outcome of mediation is highly successful and leads to stronger relationships in the long-term, which is especially important if children are involved.
Once a decision is made to proceed with mediation, the next stage is to select a mediator. Pre-mediation planning is then undertaken by the mediator chosen, including completing a risk assessment, determining the preferred team to attend the sessions, contacting both parties, preparation of the opening presentation, and determination of a strategy for negotiation. At this point, any documents will be sought and created which are necessary for the process, including creating a case summary, gathering supporting documents, agreeing and seeking documents for disclosure (which may be open and/or confidential).
Several sessions of mediation may be required to make progress, depending on the number and complexity of the issues being discussed. And ultimately, there will be an outcome; either an agreed settlement or no settlement, with an agreed way forward.
Mediation, as a model of ADR, provides those who find themselves in the middle of a dispute a path to finding an amicable solution in a gentle, supportive, and understanding way. While mediation is legally ‘non-binding’, there are ways in which the outcome can be made enforceable by having the terms of the agreement put in writing by a Solicitor. This means that with a mediation contract in place, both parties must abide by what was agreed.
One of the strong benefits of mediation is that because it is entirely open and voluntary, those involved feel the outcomes are fair and protect their best interests – and as such, there is less likelihood of not honouring what was agreed.
Ultimately, we firmly believe ADR takes the heat out of disputes and allows parties to listen to and respect each other; creating a better outcome for all concerned.
Please note, this article does not constitute legal advice.
Hart Reade Solicitors are a full-service law firm with offices in offices in Eastbourne, Hailsham, Polegate and Meads. To make an appointment with one of our solicitors, please phone our office on 01323 727 321.