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Understanding Mediation and Alternative Dispute Resolution

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Mediation

Traditionally, if you were locked in a dispute, there were two options to resolve it. You either managed to sort it out between the parties involved, often using solicitors to negotiate a deal, or you let the courts decide the outcome. One problem with the court approach is that neither party has any control over the decision and, by then, they have usually invested a lot of effort and expense.

Sometimes there are very good reasons why court proceedings are not the best route to resolve a dispute. Costs, publicity or delay can make either party to a dispute keen to avoid the litigation process.

Why mediate?

Mediation is often a good alternative. It is a kind of turbo-charged negotiation and the courts actively encourage it, because its high success rate eases pressure on public resources. The key reasons for mediating are:

  • With litigation, for claims under £10,000, your legal costs cannot be recovered from the other side.
  • Mediation is a voluntary process and both parties need to agree in order for it to take place. As a result, this usually means there is greater commitment to the process.
  • Mediation can reduce the confrontation levels and often produces unexpected outcomes, such as the re-establishment of a business relationship, which going to court would not.
  • Mediation suits cases where the issues are not clear cut, as it encourages compromise, rather than relying on finding absolute fault.
  • It is fast. It usually takes only one day, as everyone’s interests are focused on the same result and views are exchanged openly.
  • It is geographically flexible and can take place via video-link or telephone if the parties cannot actually meet.
  • It can take place outside normal office hours.
  • It has a high success rate. Our experience is that 85% of cases are successfully resolved within 2 weeks of starting the mediation process.
  • The courts are very keen to promote mediation and therefore if a party to a case unreasonably refuses to mediate, the court can penalise them at a later date in the court case, by making them pay some of the opponents’ legal bill. This is a very important factor when considering whether to go to mediation and your legal adviser will be able to explain more.

What actually happens?

Mediation will typically involve the following steps:

  • Each party makes sure that it understands its own case well enough to explain it to a third party.
  • A mediator is appointed by the parties jointly, and a date is fixed for the confidential, without prejudice mediation.
  • The mediator will normally hold an initial face-to-face meeting to explain the process, and invites each party to make a short presentation of their positions.
  • The parties then move into separate rooms, and the mediator has discussions with each.
  • The mediator will seek to understand what each party wants to achieve and encourages them to make offers to settle.
  • If an agreement is reached it is written down and becomes a binding legal agreement. Court proceedings can be stopped and the parties can move on.
  • If an agreement is not reached, the parties can continue with court proceedings with a clearer understanding of the key issues, or maybe having resolved certain issues. However, they are not able to refer to the confidential mediation in court or otherwise.

Does it work?

Wards Solicitors offer a specialist mediation service.  We are able to represent clients at a mediation where a third party independent mediator is instructed.

Several of our clients have received six-figure sums by using mediation and there is no limit on the value of disputes that mediation can resolve. We have carried out mediations in areas such as land, contract and probate disputes, and have attended many mediations, either as a mediator or as one party’s representative.

We accept referrals from lawyers, accountants, surveyors, businesses and direct from the public and have 10 offices throughout Bristol, South Gloucestershire and North Somerset, all with good meeting facilities.

What will it cost?

A three hour mediation between two parties can cost from £500 plus VAT per party, or £750 plus VAT per party for a full day.

We are also happy to travel throughout the South West, South Wales and the Midlands to conduct mediations.  For us to represent you at mediation will cost more and we can provide full details on request.

For further information, please contact James Taylor, Partner, on 01454 204880 or email james.taylor@wards.uk.com.  Or  James Murray, Solicitor Associate, on 01934 428800, email james.murray@wards.uk.com.

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