Lynch Solicitors | How to avoid Court - Alternative Dispute Resolution: Mediation

What does Alternative Dispute Resolution mean?

ADR (Alternative Dispute Resolution) should be considered as an alternative to litigation/court.

In sensitive matters – in either business or personal life - ADR does not add to the conflict in question, whereas a Court situation can. There are many forms of ADR, for example:

• Mediation
• Structured Negotiation
• Collaborative Law
• Conciliation
• Arbitration

What exactly is Mediation?

Mediation is a swift, cost-efficient method of dispute resolution. 

It is based on the principle that people can resolve their own disagreements if given the right support.

Mediation is a non-adversarial method of dispute resolution, one which facilitates the wishes of all parties involved in order to produce an appropriate result.

Why would a Solicitor attend a Mediation?

Often it is appropriate for parties to have legal advice before and during Mediation.

A mediated agreement in a complex family law case will usually involve technical arrangements drawn up and entered into to give full legal effect to the party’s agreement. E.g. transfer of properties, pension adjustment orders etc. It, therefore, makes sense for people to have their Solicitors available to them for the conclusion of the mediation process and agreement.

When do I Mediate?

It is important to understand that mediation is voluntary and confidential and that any agreement is made by the parties and only facilitated by the Mediator by a fully informed client.

It is critical that there be full disclosure of the facts and that you understand the issues in dispute before starting the mediation process.

Once in possession of all the facts about the process of mediation, the issues in dispute and the facts necessary to make a decision, it is entirely a matter for you to agree to mediate.

What role does a Mediator play in resolving disputes?

A mediator is not the decision-maker but an independent third party to the process.

The function of a mediator is to facilitate a resolution between the parties; as such, the mediator is a referee.

A mediator does not judge who is right or wrong but works with parties to help them solve to satisfy their interests. Thus, the mediator assists and guides the parties towards their own resolution.

The mediator in a case will always remain impartial and act for all parties objectively

Why would you choose Mediation?

Meditation brings the parties together around a table right from the start, and you can nip in the bud any misunderstandings or assumptions.

It can be used to head off a dispute before it starts or resolves a conflict that has already begun.

Mediation provides a confidential, quicker, more cost-effective and more satisfactory outcome than going to Court.

An outcome can be achieved in the course of a DAY!  It may take months and sometimes years to resolve a disagreement in Court, whereas Mediation can be paced according to the parties’ needs and schedules.

What are the key advantages of Mediation?

CONTROL - Mediation is based on both parties taking control. ‘Ownership’ of the dispute and the outcome remains with the parties. They are actively involved and can express their own points of view throughout the entire process. By taking control and finding a solution that works for them, both parties avoid the risk of having a less satisfactory solution imposed on them by the Court.

CONFIDENTIALITY – The process is confidential and without prejudice to any proceedings. Information and documentation shared privately with the Mediator cannot be passed to the other party during the Mediation without express permission. Furthermore, the outcome of the Mediation is only published if the parties so agree.

FLEXIBILITY & COMMERCIALITY - Mediation concentrates on commercially based settlements and focuses parties’ minds on the realistic resolution of problems. Parties are encouraged to make non-binding concessions and to propose their own formulae for resolving the dispute. Mediation provides parties with an opportunity to negotiate a tailored solution that will suit their mutual needs; often the solution will deliver more for both parties than any Court judgment could. It is a particularly valuable process where there is an ongoing commercial relationship, which parties wish to preserve.

TIME SAVING - Mediation offers a speedy alternative to running a case to full trial in litigation. Typically the Mediation will take place within four to six weeks of the Mediation Agreement being signed and in urgent situations even more quickly.

FINANCIAL SAVING - Commercial Mediation provides a very economic alternative to running a case to full trial in litigation. Given the speed of the process it enables parties to move on with their businesses more quickly and the resulting saving in terms of management time can be very significant. Equally the legal costs and expenses associated with the process are significantly less than the costs of litigating a dispute to trial. The expenses include the Mediator’s fee, the cost of preparatory work undertaken and overheads for the day. The Mediator’s fee and overheads are usually shared between the parties. Each party bears its own costs and expenses.

Mediation Act 2017

This act seeks to put mediation centre stage. It ensures that people consider the multiple benefits associated with mediation. Solicitors are obliged to offer it as an alternative to litigation to their clients. While it is a voluntary process, the act sets out that a Solicitor must sign a declaration that the option has been given to clients. The court can invite parties to mediate.  If they do not take up the Court invitation, parties may be liable to pay costs. Even if proceedings have begun, mediation is still possible. It is also possible to add a clause in a contract that if a dispute arises, parties will agree to mediate.

Afterthought

At Lynch Solicitors, we always encourage where possible and in the best interests of all concerned, taking a route which saves both the expense and stress involved in contentious litigation.