When is mediation better suited for?

It’s a good way to deal with any dispute whereby compromise can be reached, and both sides are willing to make concessions to solve the problem.  Mr Tierney, head of dispute resolution at Herrington & Carmichael says: “it’s particularly relevant in situations where it would be beneficial for both parties to continue to have a working relationship after the dispute has been resolved.”

What’s Mediation’s Main Advantage?

Petra Arnold of Field Fisher says: “Mediation is more likely to achieve a practical solution that is satisfactory to both parties and can take into account their wider needs. It’s more likely to preserve business relationships and, as it is conducted in private, there’s less chance of receiving bad publicity.”

Mr Tierney also adds that mediation is faster and cheaper but if technical reports are needed, some expense has to take place anyway. Also if mediation fails it cannot be mentioned in court, including all those costs.

When Is Mediation Appropriate?

According to Tierney: “If a dispute has arisen while negotiating a seal, and a resolution is proving hard to reach, then mediation could be a good way of unlocking the jam. Most disputes can be assisted by mediation if it is used early enough in the resolution process. In fact, the courts are actively promoting mediation at an early stage.” It has been found recently that parties that refuse mediation can actually be penalised in court when it comes to paying for the litigation.

Generally, How Effective Is Mediation?

If both parties genuinely want to resolve the dispute, it can be very effective, even if one side is reluctant to begin with it can have a good success rate if it is handled well. Mr Tierney adds: “For claims where the cost of going to court is as much, if not more, than the value of the dispute, you would be foolish not to consider mediation.”

What Makes A Good Mediator?

Arnold says that a good mediator shows: “Independence, impartiality, a formal mediation qualification and relevant experience.” Tierney adds that they also need to understand the context of the dispute, so if the problem is in engineering, then the mediator should have experience in this area. He also adds that they generally “a good listener and firm, but patient because they may need to encourage a reluctant party to continue to mediate or look at some other way of narrowing the gap.”

When To Give Up On Mediation And Try Litigation

Tierney warns: “Don’t confuse mediation with negotiation. Lawyers will always advise that settlement negotiations be pursued in tandem with formal court proceedings. If you have fixed a mediation date and after a day’s discussion no progress has been made, that is normally a good indicator that a settlement is not yet available. You may have to start/resurrect the formal court action, but always leave the door open to discussion.”

What Do You Think?

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