What is Civil Mediation, and how can it help me?

Often, court proceedings can be very costly and time-consuming, including solicitor fees, court fees and the hassle of navigating the court system. This can leave parties stressed and financially worse off.

To try and minimise the court’s involvement parties should consider engaging with Alternative Dispute Resolution (ADR), which comes in a number of forms. ADR can be attempted prior to court proceedings, or once a claim has been issued, and the hope is that it will result in the parties resolving their dispute without recourse to a judge.

ADR can therefore offer a means of concluding the dispute, removing, or at least reducing the need for extensive and expensive court proceedings, potentially significantly lowering the financial burden. The court encourages consideration of ADR by means of incentives, and sanctions can be imposed if a judge decides that a party has unreasonably failed to consider or engage with ADR in pursuing their claim to a final hearing. A recent decision of the Court of Appeal has endorsed the view that ADR is now effectively all but compulsory.

A particularly effective method of ADR is mediation. Here at Johnson Astills, we are keen to help our clients understand the merits of mediation, to help save them time and unnecessary costs. This article will explain some of the advantages of mediation and what you can expect if you attempt it.

What is Mediation?

Once the parties agree that they will attempt mediation, a trained specialist third party will be appointed to act as mediator, and will be neutral as between the parties. Where mediation is ‘in person’, each party (often accompanied by their legal representative) will spend the duration of the mediation session in their own room, and the mediator will move between each party. 

There is no obligation for the parties to meet with each other, and this can be especially important when the dispute arises out of a breakdown in a close personal relationship, and tensions can run high.

If the parties are not local to one another, it can be possible to hold the mediation remotely, for example via Zoom or MS Teams.

The mediator in effect acts as a ‘go between’ and will usually have experience of the type of dispute that the parties involved in the mediation are trying to resolve.  The mediator’s role is therefore to try and help the parties narrow the issues between them and find terms on which the parties can agree to end their dispute.

Mediation sessions usually last for half a day or a day, and each party will cover half the mediator’s fee.

The aim of the mediation is to facilitate a constructive dialogue and negotiation between the parties. Unlike traditional court proceedings, which ends with a ‘winner’ and a ‘loser’, mediation encourages collaboration between the parties to come to a resolution both parties are satisfied with.

If a settlement can be reached, a legally binding agreement will be prepared and signed by all parties on the day. Provided that legally binding agreement is complied with, the dispute will be concluded.

What are the benefits of mediation?

It’s voluntary, and decisions are reached by agreement, rather than by imposition

It is important to appreciate that mediation is voluntary and confidential, and that when it is successful, it results in a settlement that all parties to the dispute have agreed to. It differs from the court process, where a decision is made by a judge which the parties have to comply with.

Mediation allows a party the chance to set out their position in a confidential setting, to a mediator who has no vested interest in the outcome of the dispute. This can be empowering, and affords an opportunity to further assess the strengths and weaknesses of their own case, and that of their opponent.

Mediation can therefore offer an individual party a level of control they may not experience in formal court proceedings, where they must comply with the court rules and processes, and ultimately have a decision imposed upon them.

As the mediator does not decide the outcome of the dispute, it is up to the parties themselves to decide whether and on what basis a resolution is reached. There is no requirement that a party must agree to an outcome that they deem to be unacceptable, as unlike in court, there are opportunities for parties to negotiate common ground and compromise accordingly.

It can be cost-effective

Whilst mediation will still involve expense, if it results in a settlement, the costs of further involvement with the court process will have been avoided, and therefore there will be potentially considerable savings on costs.

Even if the mediation does not result in a settlement, so that engagement with the court process is still required, it may well be that the issues in dispute have been narrowed, meaning that future costs are lower than they may otherwise have been. Sometimes, even when a mediation does not result in a settlement on the day, the experience of the mediation will focus the parties’ attention and negotiations will continue afterwards, and result in an agreed outcome further down the line, therefore still resulting in a costs saving.  

A further consequence of a party being declared the ‘winner’ or ‘loser’ by the court is that the unsuccessful party is usually ordered to cover a large portion of the successful party’s costs. Mediation allows the parties to negotiate over this costs liability, rather than have it forced upon them, and this can result in a saving.

Court sanctions can be avoided

Another important advantage of mediation is that by attempting it, a party will likely be able to avoid the sanctions for not engaging with ADR, that they may otherwise face. A common sanction is costs penalties, and it can be less expensive to attend a non-successful mediation, than to unreasonably refuse to consider participating in mediation in the first place.

It can save time

As well as reducing costs, a successful mediation can save considerable amounts of time, and the associated stress. This will allow a party to focus on other more positive things, and the benefit of being able to do this should not be underestimated, especially when the dispute is of a personal nature. 

When is the best time to mediate?

Mediation can take place at any point prior to the final hearing before a judge. Whilst  the best time to mediate will depend on the facts and circumstances of the individual case, it will generally be sensible to keep mediation in mind from the moment the dispute arises. Sometimes mediation will be attempted before a claim is issued, but often it will follow the issue of a claim, once parties have exchanged more evidence and the financial reality of the court process starts to be felt.

Mediating early can therefore be a way of capitalising on the benefits we have outlined above, by opening  a dialogue with the other party before relations become more hostile and each party becomes more fixed in their position.

Get in Touch

At Johnson Astills, we offer fixed fee initial consultations, at which we will discuss your matter in detail and provide preliminary advice and guidance.

If you are involved in a dispute and require advice on how to move forward, or feel that mediation may be useful in your dispute, contact our Dispute Resolution team for guidance.

For further information, or to arrange a fixed fee consultation, please call our Leicester office on 0116 255 4855 or our Loughborough office on 01509 610 312, or fill in our free online enquiry form and one of our friendly team will be in touch.