What is mediation and why should I think of using it?

Litigation is a form of warfare. Few experiences are more stressful or lonely than the requirement to give evidence in Court. Your opponent’s barrister is there to hook into you and your evidence and take both of you down the plughole. Your barrister has a professional duty to do likewise with your opponent.

For that reason mediation may be a sensible option, where relationships can be salvaged, or there is risk to both sides in having a Court battle, or candidly one or even both parties cannot afford to go to Court.

In mediation an independent third-party neutral assists parties to resolve their dispute. Mediation is possible at any stage, both before litigation is started or at any stage during the pre-Trial process. Judges often stop the pre-Trial process to give parties a thinking space and the opportunity to consider and try out mediation. They warn parties that a failure to engage in mediation may reduce any costs they are later awarded even as a successful litigant.

Mediation has to take place at the right time. Advice from professional advisers is crucial. Enough information must be on the table. Don’t hold a building defects’ mediation, where there is a list of defects (say in a schedule) upon which the builder is yet to comment. It is not the mediator’s job to assemble the basic facts before cracking on with the negotiations.

Don’t leave it too late. The need to recover legal and expert witness costs may alone be enough to scupper a mediation held one week before Trial.

When all parties agree to mediate, we’ll suggest two or three mediators for your consideration. You can check out their details and some may be happy to have an informal chat with you first. Once you have a mediator agreed with your opponent, we can help you sort out the date and venue for the mediation.

With that settled, we’ll then bring together opposing parties and their advisers and help replace adversarial confrontation with principled negotiation.