21 September 2021
Focus on “resolution rather than dispute’; chose to mediate rather than litigate. That’s the message to litigants from the Master of the Rolls, the most senior civil judge in England and Wales.
So why are judges highlighting the benefits of mediation and why should businesses and individuals engage in mediation to resolve their disputes?
Confidential and ‘without prejudice’
The mediation process is entirely confidential; anything which the parties say during the mediation will remain within the mediation 'bubble'. This means that the parties can engage in candid discussions without the risk of adverse publicity and reputational damage from a court or tribunal hearing.
Mediations are also ‘without prejudice’, which means that in the event of an unsuccessful mediation, the nature or content of mediation discussions cannot be disclosed in court or tribunal.
Neutral third party
The mediator is entirely neutral. Their role is not to apportion blame or to give advice. Nor is their role to suggest a particular solution to the parties. The mediator’s role is to help the parties find common ground by encouraging them to be forward-focused and objective in their approach to their dispute.
Quick and Cost-Effective Solutions
Mediation is a quick and cost-effective means of resolving disputes. A mediation can usually be arranged at short notice with most mediations completing within a day. Not only does this compressed timetable reduce legal costs, it also enables those involved in the dispute (whether they be parties, directors, managers or witnesses) to use their time more productively than in preparing for a court or tribunal hearing.
Control and certainty of outcome
Litigation is a risky business; no matter how strong a case may appear, the wheels can come off all too easily on the day.
By contrast, mediation allows the parties to retain control over the outcome of their own dispute. It enables the people who will be impacted by the outcome (ie. the parties) to determine what that outcome looks like by exploring options which are not available to a court or tribunal and which are acceptable to both parties.
Mediated outcomes should be built to last. In cases where there is to be an on-going relationship between the parties, mediation provides a forum for the parties to rebuild trust as they work to find a solution to their dispute. Rather than focusing entirely on the existing conflict, the mediator will encourage the parties to learn from the dispute and find a solution which addresses both the existing conflict and seeks to prevent future disputes.