21 May 2010 by

Peace in our time - Mediation: the new way

 In 2007, Lord Justice Ward stated the following -

"What I found profoundly unsatisfactory, and made my views clear in the course of the argument, was the fact that the parties have between them spent in the region of £100,000 arguing over a claim which was worth about £6,000. In the florid language of the argument, I regarded them, one or other, if not both, of them as 'completely cuckoo' to have engaged in such expensive litigation with so little at stake ... In so many cases, and this is just another example of one, the best time to mediate is before the litigation begins. It is not a sign of weakness to suggest it. It is the hallmark of commonsense. Mediation is a perfectly proper adjunct to litigation. The skills are now well developed. The results are astonishingly good. Try it more often."

People who have been through litigation will know what an expensive, time consuming and frustrating exercise it can be. This is not helped by the fact that our courts, certainly as far as civil trials are concerned, have become largely dysfunctional. Very few parties - quite understandably - wish to wait two to three years before their matter is resolved at trial.

What compounds the problem is that there are only winners and losers. Courts, which are obliged to take crisp legal positions in respect of disputes, do not concern themselves with compromises or "fair" decisions. There is no middle way.

Arbitration, while it greatly reduces the time to resolve disputes, does not resolve the other two problems with conventional dispute resolution, namely its high cost and ultimate potential frustration.

For the resolution of many disputes, the time of mediation has come.

Mediation is nothing more than a process in terms of which the parties to a dispute, under the guidance of an expert mediator, attempt to reach a mutually acceptable resolution to their conflict. The mediator is not a judge; she is an expert facilitator who assists the parties, through the application of mediation techniques and harmony, to resolve the conflict.

The great benefit of mediation is that it is a very short and inexpensive process. Most mediations do not last more than a day - albeit often a long and exhausting day - and most mediations are successful. Statistics from mediations in the United Kingdom show that approximately 80% of mediations lead to a negotiated solution between the parties. Even if the initial mediation is not successful, very often the parties have reached a point where they are able to resolve the fight shortly thereafter.

But mediation is not bunny hugging. It is often a tough process. The parties seldom "kiss and make up" or leave holding hands. The parties reach a mutually acceptable solution, not necessarily the ideal solution for each of them, but one which is the best practical outcome. The advantages, namely an enormous potential saving in time and cost, more than outweigh any disadvantage in not achieving the ideal result.

Mediation is also best implemented early in the dispute before parties' positions have hardened, and before they have invested so much in litigation or arbitration that they cannot afford to back down.

If you want to save time and money, and have less stress in your life, give mediation a chance. As the Judge said, the results can be astonishingly good.

Richard Marcus, Director
Dispute Resolution: Litigation, Arbitration and Mediation

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