What is mediation?

Mediation is a form of alternative dispute resolution. The courts look favourably upon a willingness to be reasonable and open to the settlement of cases in this style, since it relieves pressure on the courts’ workload and allows them to allocate more resources to those cases that have reached deadlock. But the benefits of mediation are not restricted to the courts – in fact those with the most to gain are the parties to the case themselves.

Whilst you will never be forced to use alternative dispute resolution rather than go to court, a failure to consider it or an unreasonable rejection of it could have adverse consequences when it comes to the court’s assessment of the costs you can recover from the other side, or the amount of costs they can recover from you. Where the assets or sum of money in dispute are small or decreasing in value, it can make economic sense to use mediation rather than go to trial, particularly when you consider:

1. Mediated disputes are almost always conclusively resolved at mediation – court decisions may be appealed causing considerable delay with no party having the full benefit of assets in dispute.
2. Mediations very rarely last more than one day – trials can last for days or weeks, and the cost of ensuring all parties, solicitors, barristers, witnesses and experts attend trial at a court location that may not be convenient can be significant.
3. The parties to a mediation are free to divide any disputed assets in as fair and equitable a manner as they can agree on, as opposed to division along arbitrary or technical legal lines by a judge at court.
4. A mediation agreement can incorporate remedies and findings which cannot be included in a court order.

What happens at a mediation?

Everyone involved in the mediation signs an agreement that says, amongst other things, they will abide by the mediation agreement (if one is reached) and to keep everything that goes on in the mediation confidential.

On the day, you are not obliged to come face to face with the other parties, although it is hoped that at some point in the day this will be able to occur. The mediator introduces him or herself and explains what will happen. The mediator liaises privately with all parties separately with a view to finding common ground and narrowing issues. The mediator is not there to impose on any party or order that any party make or accept any offer of settlement, but to create an environment in which the dispute can be resolved. The case will only settle if all parties are satisfied. The terms of the settlement are then drawn up by the solicitors, signed by the parties and soon after filed at court so that in the event of non-compliance it may be easily enforced at some later stage.

The costs of mediation are usually split between all parties. The mediator’s fee is for time taken in familiarising him or herself with the case, attendance on the day, room hire and refreshments. The size of the fee depends primarily on the extent of experience the mediator has.

The Role of Rowlands in your mediation.

Rowlands can oversee the conduct of your dispute from beginning to end. We will ensure your interests are protected and that your case put most effectively. Ultimately, bargaining power at mediation is determined by the same things that govern a lawyer’s opinion of prospects of success and risks at trial: the facts that need to be proven, the strength and extent of evidence available to prove those facts, and what the client stands to gain should he or she be successful in doing so.

It is each party’s assessment of the risk of not being able to achieve this at trial that determines what each party will be willing to settle for at a mediation, since that will form the basis of their assessment of what is and is not a reasonable settlement. If no agreement is reached, it will usually be because one side honestly believes they will do better at trial than they are being offered at mediation. It is therefore essential to have a professional opinion on this. Rowlands can provide a highly skilled team of solicitors to help assess the strength of your case, collate the strongest and most relevant evidence needed to prove it, and present it in the best light possible. Our experience in dealing with untested trials aids in advising whether an offer is worth accepting or not, considering legal, economic, emotional and other relevant factors. We also act as your mouthpiece to put your opinions or concerns to the other parties professionally and convincingly. Finally we liaise with the other parties’ legal representatives to draw up the mediation agreement, making sure it is well worded legally to avoid the possibility for future dispute and to ensure it is enforceable effectively if necessary. Of course, should the mediation prove unsuccessful, Rowlands can resume proceedings immediately at court.

You can contact Rowlands via email or call 0161 835 2020 to arrange a consultation with a Rowlands Mediation specialist.