We have previously highlighted on the blog and our website how mediation can help clients retain control over the outcome of their legal disputes whilst avoiding unnecessary, bloated legal bills. Mediation is one of several possible alternative method of dispute resolution – that is, ways to resolve disputes that do not involve going to court.
Last week Jen Wiss-Carline, a Chartered Legal Executive with April King Legal, provided her feedback on mediation to the Law Society Gazette which was featured in their article ‘Will mediation become compulsory?‘.
Jen is quoted as saying that all parties must learn to love mediation, and embracing it may keep the ‘compulsion’ wolf from the door.
‘Sadly, many misunderstand what mediation is about, believing it to mean that they have to give up control over the outcome of their case and compromise on their position. The reality is that if you have a dispute, mediation puts the control back in your hands. When you go to court, it is the judge that makes the decision – and this decision may not be something you (or the other party) would have wanted.’
Is alternative dispute resolution suitable for my dispute?
Mediation is very suitable for neighbour and boundary disputes.
Mediation – or other forms of alternative dispute resolution – can be an effective way to resolve a very wide range of disagreements, from commercial matters where two businesses cannot agree, to family matters and boundary disputes.
Although there is no restriction on the type of dispute that could be brought to mediation, certain types of disagreement are particularly suitable for mediation:
- When two or more parties cannot agree on the facts or the relevant law.
- When one or more of the parties have strong emotions about the matter.
- When one party feels strongly that they need the other party to hear them out.
- When the parties cannot communicate effectively with each other, without the help of a third party.
- When one or more of the parties are not skillful negotiators.
- When there is disagreement on how the matter should proceed between one of the parties and their lawyer.
The key thing to remember here is that mediation allows you to keep control of the matter. This month’s report by a working group of the Civil Justice Council noted that the essence of alternative methods of dispute resolution is:
“the deliberate creation of an opportunity for parties to explore calmly their real interests and to step back from the contentious atmosphere of the ‘battle’ of litigation.”
Once the issue is put before a judge, you lose all control of the outcome. Your matter may be decided in a way that neither you, nor the other party, agree on – and the decision could cost both parties thousands of pounds.
But mediation costs money – if I win my court case, the loser pays my legal fees!
The fact that you can end up paying ALL of your legal bills and those of the other party, even if you win, can be a shock to many people.
There is a misconception that the winner gets all their legal costs paid for. This is simply not true. If you win and the judge orders the other party to pay your legal costs, this will typically only cover around 70% of legal fees, leaving you to make up the balance. In addition, many are unaware that you may end up paying all of your own costs and those of the other party, even if you win your case. The judge has complete discretion to decide who pays costs.
Then there is the risk that you may not win – no matter how confident you are in your case. Although your lawyer may tell you that there is a high probability that you will be successful, they cannot guarantee the outcome. Indeed, if the outcome of any court case could be predicted with any certainty, we wouldn’t have a need for the courts.
Types of Alternative Dispute Resolution
There are many types of alternative dispute resolution – some common types include:
- Mediation – where the parties meet and agree on an outcome that is satisfactory to both, with the help of a trained mediator.
- Consumer conciliation and ombudsmen – where disputes are dealt with by conciliators and ombudsmen typically through industry‐specific schemes.
- Early neutral evaluation – where the parties invite a neutral third party to give an opinion on the merits of the case (or certain aspects of the case) usually with a view to encouraging settlement or narrowing the issues in dispute. The evaluator will typically be a lawyer or an expert in a relevant field.
- Online dispute resolution – not a method in itself but an avenue through which established dispute resolution approaches can be used. Typically the process starts with an online interaction between the parties where both will give their arguments, followed by questions which closely resemble the initial stages of traditional mediation. If the dispute does not settle on this basis then usually a human mediator will be available to the parties perhaps by web‐conferencing or asynchronous text exchange.
The right type of alternative dispute resolution for you will depend on the facts of your case. Speak to our team about arranging ADR/mediation today – call us on 0800 788 0500 or email firstname.lastname@example.org.
- ADR and Civil Justice – CJC ADR Working Group Interim Report October 2017 (PDF)
- CJC consultation on the future role of ADR in Civil Justice – deadline 15th December 2017