Disputes: Is mediation the better way?

That being the case, Andrew Cromby, mediator and commercial litigation partner at national law firm Weightmans asks “Is there a better way?” The answer is yes – mediation.

For over 30 years I have dealt with disputes between companies, individuals and a variety of other, more esoteric, entities. During that time the process of litigation has become increasingly complex and costly. It’s reached the stage now where it only makes sense to litigate in relatively extreme circumstances; where someone’s livelihood is at stake, where a substantial sum is in issue or where there’s an important point of principle that requires a decision.

Judges

Litigation has always involved risk – not least because the law is interpreted by people, flesh and blood judges, who are as capable as any of us of having a bad day. They are some of the cleverest people you will ever come across and trained by long years of navigating the court’s procedure in the pursuit of justice but, even with all that experience, they are human. That means that the same decision is capable of being made by two different judges, on two different days, in two different ways. Absolute certainty is absolutely out of the question.

Evolving evidence

Another factor is that the evidence in a case evolves right up to the date of the trial. How a witness performs on the day can make the difference between winning and losing, and there’s no way to predict accurately how that will pan out at the start of the litigious process, long before all relevant matters have been investigated in adequate detail. Your case may look very different at the end of the road from how it appeared at the start.

Irrecoverable costs

Bear in mind also the normal position in relation to costs: a successful party has most (but far from all) of their costs paid by the unsuccessful party. The issue of costs can be pretty complex in its own right; even a victory can present as a form of defeat in those circumstances.

All of this has remained constant over the years but how, in other ways, has litigation become more problematic? In many ways, not least:

• the procedure for bringing a case has become more complicated

In the last twenty years the procedure that a party to litigation needs to comply with has become ever-increasingly complicated. Time limits are strict and Solicitors can find their clients being unable to pursue their claims if a deadline is missed. Front-loading the work that needs to be undertaken and the way in which evidence needs to be prepared has become very onerous. That means that it is time-consuming and, for the client, that means more expense.

• lawyers are driven to be ever more commercial and the job is taking longer

Together with everyone in the commercial world, lawyers are driven by the need to be profitable.  They operate in a world of ever-increasing bureaucracy which requires them to engage with regulatory obligations which are onerous. Add that to the need to comply with more complex/onerous procedure and the cost for clients is driven upwards.

• court resources are stretched

The courts are not immune to the need to be increasingly “efficient”, and this often means fewer people available to move cases after cuts have been made. The result: delay and, not uncommonly, the need for advisers to chase the court. There are many different courts in our jurisdiction and some of them are excellent at moving matters forward. Some, however, have long waiting times to deal with enquiries, and it can sometimes take many months before the court is able to offer a date for disposing of an issue. During that time costs can continue to accrue.

All of this results in an unhappy set of circumstances for those bringing or defending claims. The process can be very slow, very expensive and, ultimately, uncertain. The only hope for a prospective litigant is to obtain the most scientific, transparent and supportive legal team that they can find. That gives them a fighting chance against the system, as well as against their opponent. Pity the client who has an adviser that is driven by an agenda other than the best interests of their client!

Often the factors set out above don’t become apparent to a client until they are “in the chute” – bound into litigation which seems endless, the stress of which can be formidable.

No way out?

Is there any way to exit that process, short of taking a matter to its conclusion? Yes. At any stage a party can withdraw from bringing or defending a case – but with the automatic consequence, in most cases, that they have to pick up the other side’s legal costs.

A further possibility is that the parties may agree a settlement – the terms of which are recorded in writing and provides for the case to be disposed of. This is very common, but it can come late in the process of a dispute, when significant harm has been caused in terms of costs and wasted time.

Focussing on the possibility of a potential settlement, is there any way to bring the possibility of the dispute being disposed of at an early stage and, also, to make it more likely to succeed?

Enter mediation…

What is mediation?

Mediation is a form of Alternative Dispute Resolution, (ADR), and one of the most popular and effective methods of resolving matters through negotiation. It is particularly attractive when the alternative option for individuals and businesses is complex and potentially costly disputes – see above. The objective is for the parties to reach a mutual agreement with the assistance of a neutral third party, the mediator, who guides their negotiations. The mediator facilitates the resolution of the parties’ differences by seeking to understand and focus their attention on their needs and interests and by exploring the alternatives to a protracted dispute.

Mediation has become a firm feature of modern disputes. It is a confidential process which takes place on the basis that what is communicated between the parties at the mediation is also “without prejudice.” That means that what is said at a mediation cannot be relied on or referred to outside that process without the parties’ agreement. This gives the parties the opportunity to speak openly and, when assisted by a mediator, the process can be extremely effective. Typically, more than 80-90% of mediations result in a settlement.

I have participated in many mediations. They regularly unlock the differences between parties in disputes and can bring unwanted conflicts to an end. They can also take place before a dispute has taken off formally, hugely reducing the cost of a client’s legal spend.

Advantages to mediating

There are many advantages to mediating:

• mediation is confidential and fast, with meetings tailored around the parties’ schedules. It can take place in person or virtually
• the process is cost effective, very significantly less expensive than a protracted dispute. If settlement is reached, the cost of the dispute can be brought to an end immediately
• the parties maintain control, with the mediator providing support to help them evaluate what makes the most sense to them. Resolution is only reached on the basis of what is acceptable to the parties — decisions are not imposed on them by a judge, arbitrator or tribunal
• the process is creative. This allows bespoke and innovative solutions to be found, suited to the needs of each individual case
• mediation offers the parties certainty about the future, not only capping costs but also putting everyone in a position where the uncertainty of a continued dispute is avoided
• the process may also help the parties to repair relationships and can form the basis for future cooperation
• mediation is a voluntary and informal process.

Coming back to the start of this article: litigation is, in the majority of cases, something best avoided or curtailed. There has never been a better time to mediate.