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There is an increasing move in modern litigation for the courts to encourage parties to explore alternative dispute resolution (ADR) where possible, in order to deal with cases outside of the court system. This is in keeping with the Overriding Objective set out in CPR 1.
The most common form of ‘ADR’ is probably mediation. But what is it, and should you engage in it?
Whilst there are very few set rules to a mediation, it is a process in which the parties to a dispute get together (either in person or virtually) with a neutral third party (the mediator), who directs the discussions in an attempt to reach settlement or narrow the issues in dispute. It is conducted on a without prejudice basis, which means matters discussed cannot be referred to in proceedings.
Traditionally, mediation takes place in a venue large enough to accommodate both parties, their solicitors (if parties are not representing themselves) and the mediator. Each party will require their own room, with the mediator also having a room they can go to. However, mediation is increasingly carried out ‘virtually’ via Zoom or Teams, with the use of ‘breakout rooms’.
The mediator will talk to one party in their room, and then go and talk to the other, and so on, shuttling between the parties and seeking to guide the discussions towards settlement.
Part of the benefit of mediation is that there are no set rules, and the process can be tailored to the participants, their requirements, and the characters involved. For example, if there is extreme animosity, the parties may want to avoid any ‘face to face’ interaction. However, for commercial disputes between businesses, some ‘director to director’ discussions can help unlock things.
With this in mind, there is no set format to be followed. However, mediations may include:
The mediator assists and guides the parties towards a workable solution, and will not decide the outcome for the parties. The mediator is in control of the day and they have various ways of ensuring the discussions can progress by controlling communications and balancing the power between parties.
The mediator may be privy to confidential information from both parties. They will only share this with the other side if they are expressly authorised to do so by the disclosing party.
There are many advantages to trying mediation in a dispute and the decision to do so should not solely be based on whether you think you have a good case or not.
Some reasons why you should consider mediating:-
The courts are also keen to encourage parties to mediate wherever possible. Following the decision in Halsey it was held that a party can be punished on costs if they unreasonably refuse an offer to mediate. Usually costs follow the event, in that an unsuccessful party pays the successful party’s costs. However, if a successful party unreasonably refused to mediate the court does have discretion to reduce the amount of costs the successful party can recover.
If you have received an offer for mediation and are unsure whether to accept it or you would like us to assist you with an upcoming mediation, contact the dispute resolution team who will be able to advise you.
The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.
To contact us, please fill out this form and we will get back in touch as soon as possible. Your personal data will be processed in accordance with our privacy policy which can be found here.