Negotiate, Litigate or Mediate?

DRAFT

The information herewith gives general guidance. It should not be regarded or relied upon as a complete or authoritative statement of the law or treated as a substitute for specific legal advice concerning individual situations. Read our full legal notice on the left.

 

By Russell Evans, Manager of Resolve UK[i]

If you have come to this website it is likely that you are involved in a dispute and seeking assistance. It is likely that you have not been able to negotiate a successful resolution of your dispute, have not been able to convince your opponent of your position or legal rights and are unable to satisfy your opponent of the remedies or redress to which you believe you may be entitled.

You may feel that your words have fallen on stony ground and that your attempts to negotiate have been frustrated. Maybe of course you have simply not been heard. There may also be a gulf between you not only in understanding but perspective.

You are probably feeling frustrated. What can you do? You collect your thoughts. You can of course try again and hope for a more positive response. You may however feel that you have reached an impasse. There is of course the option of litigation. Sometimes you may have no choice.[ii]

Litigation of course may bring its own ordeals and demands, including the need to prepare court papers, the need to attend at court before a judge and the need to facilitate argument and advocacy in your cause. Added to this process is the work of preparing and collating evidence, obtaining and finalising witness statements and invariably a good deal of stress and delay. Litigation is usually both lengthy and costly. The outcome is also out of your hands. Control ultimately rests in the hands of the judge and the judge’s decision will be handed down and imposed on the parties. Litigation in consequence has often been likened to a war focusing on a fight between the parties.

Mediation by contrast is a very different process. Mediation is both party and solution focused. In a mediation the parties to the dispute appoint an independent professionally qualified mediator to assist them. The mediator assists the parties to review their dispute, to consider options, to facilitate discussions and to explore and ultimately find solutions. The mediation typically takes place over the course of 1 day. It may last a few hours or may be longer where there is a more complex and involved dispute. A solution which is agreed by the parties is usually found. Indeed mediation has an 80 % success rate.

Mediation is far quicker and far cheaper than litigation. Mediation is also a private and confidential process. Parties to the mediation can have separate confidential discussions and meetings with the Mediator. Indeed the mediation process is flexible and can adapt to suit both case and party needs. It is not hemmed in by the formality of a court room.

Mediation can be used both before and after the commencement of court proceedings.

The Courts, the Judiciary and Government all support and recommend the use of mediation as a highly effective mechanism for resolving disputes.

Here is what Lord Justice Ward had to say in the Court of Appeal case of Oliver v Symons (2012) EWCA Civ 267:

Parties should ‘put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come’

Courts also now routinely consider the reasonableness of conduct of the parties to a dispute and proportionality when making cost orders. Indeed the courts can impose adverse cost orders on a party who fails to mediate. Here is what Lord Justice Rix had to say in the Court of Appeal case of Rolf v De Guerin (2011) EWCA Civ 78:

‘Parties should respond reasonably to offers to mediate or settle and…their conduct in this respect can be taken into account in awarding costs.’

Judges are in fact required to consider the use of mediation under the Civil Procedure Rules.

Under the Ministry of Justice Scheme to which Resolve UK belongs the cost of mediation can start at just £50 or £100 per party for lower value claims. Under the scheme there is a sliding scale depending on the size of the claim. For claims below £50,000 the mediator’s fee is fixed at a maximum of £425 per party for a half day appointment.[iii] Some low value claims can even be dealt with over the telephone. In most cases a mediation venue will be required. Mediation rooms can be provided by Help4Lips.

Mediation has a wide variety of uses. By way of example it can be used to resolve:

  • Property disputes including claims as to ownership as well as boundary and construction disputes
  • Disputes about wills and probate and claims for inheritance
  • Insurance claims – fire, flood and theft as well as personal injury
  • Business and trade disputes including disputes between business owners, partners, directors and shareholders
  • Employment claims including grievances and claims for discrimination and unfair dismissal
  • Family disputes including financial division and child access

There are of course many other types of disputes where mediation can assist. It is impossible to list all here. If you would like to resolve your dispute Mediation could be right for you.


[i] Russell Evans is a practicing Mediator, Arbitrator and Legal Consultant. He is practice manager at Resolve UK a nationally accredited mediation panel approved by the Ministry of Justice. He is a former solicitor and former Head of Litigation & Dispute Resolution.  For further details or to explore the use of mediation see www.resolveukmediation.co.uk or contact Russell at resolve@resolveuk.co.uk

[ii] There are defined time limits for bringing court actions and tribunal claims.

[iii]  Scale as at July 2013

 

 

The information herewith gives general guidance. It should not be regarded or relied upon as a complete or authoritative statement of the law or treated as a substitute for specific legal advice concerning individual situations. Read our full legal notice on the left.

 

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