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Mediation

Mediation

Head of April King Legal Paul King TEP with Elite Mediator Nigel Frost

Legal disputes can be expensive but there is an alternative route for dispute resolution: mediation.

Where you have a legal dispute, you should consider the route of Alternative Dispute Resolution to help you negotiate with the other parties involved. This can often help you settle the matter much more quickly and ensure you keep the legal costs to a minimum.

One of the most effective types of Alternative Dispute Resolution is Mediation.

Our Legal Services Manager Jonathan Maskew questioned a leading mediator, Nigel Frost regarding the route of mediation:

Q: So what is mediation?

Jonathan Maskew

Legal Services Manager Jonathan Maskew

“Mediation is an attempt to bring about a peaceful settlement or compromise between disputants through the objective intervention of a neutral party.”

“Mediation as used in law is a form of alternative dispute resolution (ADR). This is a way of resolving disputes between two or more parties. A third party, the mediator assists the parties to negotiate their own settlement. Mediation has a structure, timetable and dynamics that “ordinary” negotiation lacks. The process is without prejudice*, private and confidential. The presence of a mediator is the key distinguishing feature of the process. Mediators use various techniques to open, or improve dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. The mediator must be wholly impartial and independent.”

* “Without prejudice” means that anything said during the mediation session cannot be used  in court as evidence of admission at a later stage.  

Q: So why mediate?

“Mediation is an effective way of resolving disputes without the need to go to court. A court is not the only mechanism for resolving disputes. Mediation is an alternative. It allows the parties to the dispute, assisted by a trained mediator, to seek an outcome for themselves. The obvious advantages are speed, economy and certainty but there are many other possible advantages – for example, rebuilding or preserving relationships. You may be able to explore the issues that go beyond those a court could consider. You may be able to devise solutions which include elements a court could not or would not apply. You may be able to reach a solution that you can live with even if it is not your ideal solution.”

Mediation

L – R: Elite Mediator Nigel Frost, Head of April King Legal Paul King TEP, Legal Services Manager Paul King, Association Director Henry Straw

“A court is simply a mechanism for resolving disputes. It is a highly structured system where the judge will hear the evidence, apply the law and reach a decision based on the application of strict legal principles to that evidence. A court will only answer the specific questions posed in the litigation. It is frequently an expensive, time consuming, stressful and uncertain process. It involves placing your problem in the hands of an unknown outsider. You lose control of the outcome. You are likely to become focused on the process, on providing evidence to try to influence the judge in your favour instead of applying your energies to the resolution of the dispute itself.”

“Court proceedings may have other unwanted or unforeseen consequences. Any personal, trade or professional relationship that is under strain as a result of the dispute, is likely to be made worse or destroyed entirely by the time a decision is achieved. Ultimately, the decision may go against you, or worse still, the judge may reach a decision that suits neither party. A failing party at court may end up paying their own costs, the other party’s costs in addition to any amount decided by the judge. This can be on its own a very powerful reason to mediate.”

Q: If I decide to mediate, what should I expect on the day?

“Mediation does not have the formality of a court. Much depends on the wishes of the parties, the nature of the dispute, the number of parties, the physical constraints of the venue and the style of the mediator. For example, in a dispute about a boundary it may make sense to visit the site. There are, however, certain common themes which frequently emerge.”

“The best venues will have one room for each party plus a large meeting room where everyone can meet. The most common format, but by no means universal, is for there to be an opening session attended by everyone at which after introductions and a few opening remarks by the mediator, each party sets out their view. After that, sometimes the discussions continue but frequently the parties move to their individual room and the mediator will shuttle between them giving everyone time and space to develop possible solutions. The mediator will work on the basis that anything he/she is told in private session he/she keeps confidential, unless authorised to disclose it.”

“A common misconception is that mediation is a “fuzzy” way of resolving disputes. It is not. Whilst it lacks the formality of a court no one needs to give ground if they do not wish to do so. The object of the exercise is to resolve the dispute by negotiating a mutually acceptable solution for all concerned.”

“Remember that there may not be a perfect solution, or if there is, you may not achieve it in court – be flexible. Remember that the mediator is not a judge. Do not try to convince the mediator that you are right. The mediator will not tell you if you have won him/her over even if you have, it would not achieve anything – it is the other party you need to convince.”

“If a resolution is achieved, you or your legal adviser will normally draft an agreement which is signed by both parties. If court proceedings are ongoing that can be expressed as an order bringing the proceedings to a close, or staying them pending compliance with the terms of the settlement agreement. Most mediations settle, but if, unfortunately, no solution is found, then nothing is lost. Neither party will be able to rely on concessions made without prejudice at the mediation. At the very least you should have gained a greater understanding of the position adopted by the other party. Indeed it is not uncommon for disputes which fail to settle on the day to settle shortly afterwards, when those involved have had time to reflect.”

Q: Can I have a lawyer present?

“Yes – if you wish. You may feel that your dispute is rather complex and that you would prefer legal advice throughout the mediation bearing in mind that the mediator cannot give any legal advice to the parties.”

With thanks to Nigel Frost, Elite Mediator and Jonathan Maskew, Legal Services Manager.

You may also find the following article useful: ‘ADR – it cannot be ignored’ ~ Law Skills

To find out more or to arrange a mediation session, please call April King on 08700 120 130 or email info@aprilking.co.uk.

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