Now that we have got over GDPR and life can return to ‘normal’ I thought I’d deal with the subject of whether to mediate a dispute, or not, which is becoming increasingly important in litigation disputes.
As a qualified mediator, I am sometimes asked by potential clients if I can mediate a case for them. That is not normally possible if I have already received instructions and information on the case from them. The reason for this, is that it is not possible for me to mediate the dispute without the consent of the other parties because as mediator I need to be completely impartial.
However, as I have had experience of mediation, I actively encourage dispute resolution, because at every relevant stage, consideration should be given to alternative dispute resolution (ADR).
There are many types of alternative dispute resolution, such as without prejudice negotiation, mediation, arbitration, adjudication. Some of the advantages and disadvantages of the above are as follows:
Without prejudice negotiations
These are usually conducted between the parties without the formal process of the mediation. So, it has less formality and can be used virtually at any time. However, it is more effective at the beginning of a dispute, once the issues in the case have been established. The disadvantage of delaying the process is that the parties can become too deadlocked and therefore the negotiations will not succeed.
This can be a very successful tool to achieving a settlement because the independent mediator can often break a deadlock when the parties cannot see a way forward. Additionally there are other benefits, for example certain items of settlement can be included which would not be granted by the court and the whole process reduces the risk and stress of court proceedings.
However, the process is formal and does involve cost to each party. It is important to ensure that the mediation process does not affect the Court timetable, so sometimes if attempted too late with a trial date approaching, the opportunity is lost.
Arbitration or Adjudication
A further option is arbitration, whereby an independent third party makes a decision that is binding on the parties. Sometimes this process or adjudication can be used in construction contracts and is an effective way of reducing the risk and costs of the court hearing.
There are other types of alternative dispute resolution available. Another such example is med-arb, a process of mediation at the end of which the parties can choose that the mediator provides a decision as an arbitrator. This does have its attractions, in that there is some finality in the decision. Complications can arise when private and confidential information is passed to the mediator, who then becomes the arbitrator. This can affect their impartiality, so, this point needs to be considered when choosing med-arb.
Conclusion on whether to mediate or not
It is clear there are a number of options to consider in each and every case, but ADR should be encouraged since continuing to Court is risky and stressful. The tendency of the Courts is to penalise parties who have not considered alternative dispute resolution and therefore considerable expertise is needed in choosing the right process.
If you wish any further advice on these matters please contact us on 0208 959 6090 or via this link>