David Jones, Partner at Glaisyers Solicitors, begins our 2020 campaign of guest articles with a review of the advantages and disadvantages of mediation. We think this is a good, concise overview of mediation from a lawyer’s perspective. We hope you enjoy it.
David Jones, Partner at Glaisyers Solicitors
Mediation is becoming an increasingly popular route to take when solving disputes. In many cases, it is even considered as the first step of the court process as it is becoming more and more integrated into proceedings.
The reason for its popularity stems from the fact it is designed to settle disagreements amicably without the need of going to court. This saves all parties both time and money.
In many cases, disputes appear unfixable simply because communication between two people has broken down. Mediation offers an opportunity to rebuild that communication by bringing everyone involved together on neutral ground.
To ensure fairness during this process, all sessions are conducted by an impartial third party known as the mediator. The role of the mediator is to give everyone the chance to tell their side of the story and explore solutions with the potential to keep both sides happy.
There are many advantages to using mediation as an Alternative Dispute Resolution (ADR), but there are a few potential drawbacks you need to be aware of too. In this article, we’re going to go through the key aspects you need to be aware of before deciding if it’s the right path for you to take.
1. Mediation is More Cost-Effective than Court
One of the biggest advantages of mediation is that the costs are considerably lower.
The hourly rate for a mediator may be lower than the rate to hire a solicitor, though it’s important to remember the more experienced your mediator is, the higher their rate will be.
That being said, if you can resolve the issue early, you could save hundreds if not thousands of pounds that would have been spent on court costs.
2. Mediation Can Save You Time
The court process can be long and difficult, especially if you have a complex case, but one of the advantages of mediation is the amount of time it can save you.
On average, a resolution can be reached through mediation within three months and with fewer sessions than if you were to go to court.
It’s also a more flexible process, as mediators can work weekdays (including evenings), as well as weekends. This can benefit you greatly if you have to arrange sessions around your work or family life.
3. Mediation is Private & Confidential
In many instances, you might not want the world to know you are going through a dispute. This could be due to wanting to protect your reputation, having a high-profile or public career, or sparing you and your family any unnecessary embarrassment.
It’s also important to keep in mind that whatever is said in a mediation meeting is kept between the two parties and the mediator. This means in the event negotiations break down, the courts can’t be swayed either way by your discussions, giving both sides the chance to state their case anew.
4. Looser Evidence Rules
Mediation is not the same as going to court. The evidence you present is not limited by normal court rules, and you may be able to include information that would not normally be considered.
This can be a massive advantage if you have any concerns that you’ll struggle to prove your loss under the scrutiny of full litigation.
5. Mediation Can End Amicably
One of the key advantages of mediation is that it gives both parties involved a way to solve things in a way that’s agreeable to both sides. Since the results of mediation can’t be enforced, if it works, it’s because both parties have come to an agreement.
It gives the two sides a chance to discuss the issue in a controlled environment and means no one is left feeling too hard done by.
1. There are No Guarantees
The main disadvantage to mediation is knowing there may be a chance negotiations could fall through.
If the other side is adamant they are right, refuses to listen to what you have to say, or won’t agree to mutually beneficial terms, then the case could end up going to court anyway.
On top of that, you also have to consider the financial implications. While mediation is an inexpensive process when compared to going to court, the cost of mediating will be added to the cost of going to court if negotiations break down.
2. You Might Want to go Public
We listed privacy as one of the advantages of mediation, but in some cases, this might not work in your favour. If you’ve been accused of something publicly, then you may want the public vindication that comes with a court case.
Alternatively, you may want to set an example for other people in your position. In a private setting, the dispute might be resolved for you, but there could be other workers, customers or clients who need to be aware of who they are involved with.
3. Mediation Requires Cooperation
Ultimately, mediation is reliant on both sides coming to the table and working towards a resolution. If one side refuses to do so, then mediation may not work for you.
Likewise, tempers can flair and mediation cannot guarantee to keep your interactions civil. The mediator’s job is to limit the possibility of this happening, but there are factors they can’t control ie. what the two parties say to each other outside of a mediation session.
Finally, attempting cooperation may just not be suitable. In particular, mediation is not always advised in domestic abuse cases. If one side has any reason to fear or feel intimidated by the other party, a successful resolution will not be reached.
A Happy Medium?
Mediation can be a fantastic alternative to dispute resolution if you believe your case could be solved by talking things through in an amicable manner. Not only will this make life easier for you and the other party, you’ll both save on the financial costs and have a chance to reconcile.
Of course, we understand that mediation shouldn’t be viewed through rose-tinted glasses. You should always keep in mind the nature of your case and the personality traits of the other side before deciding to go through with mediation.
David Jones, Partner at Glaisyers Solicitors, and Head of Litigation. He is consistently ranked in the Legal 500 for his tenacious problem solving and business acumen, acting in complex, high value disputes for successful entrepreneurs and corporates. You can view his profile here.
You can view Mediatelegal’s commercial mediation fees here. Our mediator CVs can be viewed here. To book a mediation via Mediatelegal contact us on 0151 363 3977, or by email at firstname.lastname@example.org.