Mediation, Alternatives to Dispute Resolution

Increasingly, parties to litigation are being persuaded by the courts to try to mediate their claims. Parties may voluntarily agree to mediate before court proceedings have started. Alternatively, the parties may agree to mediation after the issue of proceedings but before the trial stage has been reached. Mediation will not be appropriate for every dispute but should always be an option that is considered.

Mediation is the most common form of alternative dispute resolution in this field. It is a consensual process through which the parties seek to reach an agreement as to the disposal of the dispute. The mediator does not have power to impose an outcome on the parties as a judge does if a dispute is litigated. Instead the mediator will help both parties to see the strengths and weaknesses of their respective positions and use these factors to persuade each party to an agreed compromise.

Mediation may be preferable to litigation in the following respects:

• Mediation can be quicker than litigation. Court cases customarily take 12 - 18 months from the issue of proceedings to a trial, whereas a mediation can be arranged within a week or two.
• Mediation can be cheaper than litigation. A mediation requires proper preparation. However, the costs involved in a successful mediation will generally be less than those incurred over the lifetime of a court case.
• Mediation can enable long terms business relationships to be preserved.
• The parties can keep the dispute and its resolution private whereas a court action results in a public trial.
• The parties can propose whatever they like (within reason) in terms of a settlement and are not confined to traditional court remedies.
• The process and the result only become binding if both parties agree. The parties therefore retain control. In litigation the judge ultimately imposes a decision on the parties and they lose direct control of both the process and the outcome.

Mediation is not suitable in all instances. Its appropriateness or otherwise will be governed by the individual facts of each case.

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