What Is Mediation In Law

What is mediation in law? There is a common misconception that when a legal dispute comes to a head, the only recourse is to go to court. The reality is that litigation can be an expensive and emotionally taxing ordeal that drags on for too long. A far less stressful way to put many of these disagreements to rest is through mediation.

As one of the most popular forms of Alternative Dispute Resolution (ADR), mediation has seen rapid growth as courts have begun to urge parties to look at other options before they file a claim. It is a means for families, employers, individuals and businesses to come to terms with the assistance of an impartial third party. In this guide we will cover the ins and outs of the process, its pros and cons, and why it has become such a vital component of modern dispute resolution.

What Is Mediation?

At its core, mediation is a confidential and structured form of negotiation. An independent mediator is brought in to help two or more sides work out their differences. They are not a judge or an arbitrator. Therefore, they cannot deliver any sort of judgement. The mediator is there to facilitate the process and lead the parties to a solution, not to create or impose one. They are neutral in every sense and have no interest in the final outcome.

The aim is simple. We want to see a resolution come about in a timely and cost effective manner without the drawn out process of the courts, all while keeping the parties in control of what happens and their relationship intact.

What Is ADR?

Alternative Dispute Resolution, or ADR, is the term given to a set of processes that aim to resolve any dispute without having to go through litigation. ADR includes arbitration, conciliation, early neutral evaluation and straight negotiation, amongst others. However, mediation is often viewed as the most flexible of the processes since the solution is created by the parties themselves rather than imposed by the mediator.

How the Process Works

While no two cases are alike, legal mediation tends to follow a set pattern.

1. First point of contact: while one might choose to take part of their own accord, there are cases where a solicitor or the court will put in a recommendation before any proceedings get under way.
2. Selecting a Mediator – A mediator is selected by the parties. Neither party can force their choice of mediator on the other. Both need to agree on the choice of mediator.
3. Preparation: Beforehand, each side will present the pertinent background and documentation for the mediator to have on hand.
4. The Session – This usually starts with a joint meeting so that the mediator can explain their role and the process. Alongside the ground rules, what they expect from the parties. And what the parties should expect from one another. This usually would then be followed by opening statements (in a civil or commercial dispute). Which would then be followed by a series of private and joint meetings as appropriate to do so.
5. Settlement – If an agreement is reached. It should be formalised in writing and can be made legally binding depending upon what type of dispute it is. And or if the dispute is subject to any prior litigation. If the mediation does not result in an agreement, then the parties are free to continue or start court action should they wish to.

The Mediator’s Role

A professional mediator will not offer legal advice. What he or she will do is maintain confidentiality, de-escalate conflict and keep the discussion on track. An adept mediator can often put forward practical solutions that might not have occurred to the parties in a more conventional setting.

Suitable Disputes

Mediation is well suited to a range of legal issues.

In family matters, it is the preferred route for handling divorce, child arrangements and financial settlements with less acrimony than the courts would bring.

For commercial entities, mediation is frequently called upon to deal with contract or partnership disputes, unpaid invoices and shareholder conflicts, helping to safeguard important business ties.

Then there is workplace mediation. Employers are turning to it in greater numbers to address grievances, bullying or redundancy in a way that minimises disruption and leaves working relations intact.

Civil Mediation

There is a range of disputes that can be put to rest through civil mediation, from matters of property ownership and boundary lines to personal contracts and debt. It is also well suited to handling consumer complaints and disagreements between neighbours.

The Benefits of Mediation in Law

1. Cost

Solicitor fees, court costs and the need for expert evidence can run to thousands, if not tens of thousands, of pounds in a court case. Mediation is, as a rule, far more economical.

2. Speed

Where court proceedings can drag on for months or even years, many mediation cases are concluded in a day or after just a few sessions.

3. Privacy

Mediation is a confidential affair, unlike a public court hearing. Parties can negotiate with candour in the knowledge that their discussions will not be made public.

4. Control over the outcome

There is no judge to dictate what must happen; the parties determine the result for themselves. This tends to produce an agreement that is more to everyone’s satisfaction.

5. Flexibility

A judge is bound by legal remedies. In mediation one can arrive at creative and practical solutions that would never be ordered in court.

6. Relationship preservation

By fostering cooperation instead of confrontation, mediation is often the way to save a business partnership, an employer-employee dynamic or family and neighbourly ties. This is of particular value when the parties have to continue dealing with one another once the dispute is over.

7. Reduced stress

Litigation is inherently adversarial. Mediation offers a more relaxed setting where the focus is on problem solving, not on apportioning blame.

Is it legally binding?

Some mistakenly believe the act of mediating results in a binding decision. The process is in fact voluntary and the mediator has no power to make a party settle. Should an agreement be struck and put in writing, it can be made enforceable by contract or other means, but it does not happen automatically. Most will have a solicitor look over the final terms before they sign.

When is mediation not the answer?

It is not the solution for every dispute. If there are allegations of fraud or criminality, or where domestic abuse and intimidation are factors, mediation is not appropriate. Nor is it suitable if a party is not being honest in negotiations, if there is a marked imbalance of power, or if an injunction or legal precedent is called for. In such instances formal legal processes are preferable.

Mediation versus Court

Both have their uses. Mediation is collaborative, private and less costly. But if you require a binding judicial ruling, or if the other side will not cooperate, or if complex legal questions and enforcement powers are at issue, then court is the better course. For most, however, mediation makes an excellent first step.

Why the rise in popularity?

Several things are behind the growth of mediation: the expense of solicitors, delays in the courts and a move by businesses to resolve matters quickly. There is also more encouragement from the judiciary and government, as well as a wider understanding of ADR. Technology has been a game changer too; with secure video conferencing, remote online mediation is now more accessible than ever.

Frequently Asked Questions

How long is the process?

Most are done in one day or less, though a complicated divorced case may take several sessions.

Is it confidential?

In the main, yes. What is said in mediation cannot be taken to court save in very limited circumstances.

May I have a solicitor present?

Certainly. Many come with representation or seek independent advice prior to signing off on anything.

What if it does not work?

You are free to keep negotiating or to go to court.

In conclusion

For individuals and businesses alike, an understanding of mediation is key to making sound decisions in the face of a legal dispute. It is a cost effective and confidential alternative to the courtroom, one that promotes working together rather than conflict. Be it a commercial contract, a civil claim or a family matter, mediation gives you greater control and a quicker resolution.

It has established itself as one of the most effective forms of Alternative Dispute Resolution, cutting down on time and money while mending important relationships. While it will not fit every scenario, any party to a dispute would do well to consider mediation before commencing litigation. It can be the difference between a protracted battle and a fair, lasting settlement without the attendant stress.