When is the time right for mediation?

The existence of mediation and other forms of alternative dispute resolution can be traced throughout legal history, right back to when the Romans first developed a sophisticated legal system.

At any moment in time, both formal and informal means of resolution co-existed. How the balance made between these two different approaches would vary from time to time and it is reasonable to believe that specific factors influenced whether formal court resolution or alternative dispute resolution was more popular.

Michael Pye in his fascinating book, “The Edge of the World”, describes legal process in 12th Century Bruges. Whilst courts had been established, Pye observed,

“But if the Merchants were settled in a city, then arbitration was the best solution and debts were often the issue.”

Pye describes how arbitrators were involved and formal court processes avoided, in particular because this would have the effect of putting someone out of business, whereas a more pragmatic solution would suit all sides. He also observed,

“Arbitrators noticeably like to leave lawyers out of their proceedings, the “timewasters” denounced in one judgment of 1259.”

This suggests that mediation will be popular where two specific factors are present at the same time, that is a pool of suitably experienced individuals to be able to conduct alternative dispute resolution and a perception that the formal process is out of touch with the commercial objectives of the parties.

It is not unreasonable to suggest that there are parallels in the current position in relation to legal services, which are pointing towards increasing popularity for mediation.

There are many mature lawyers and other professionals now available to practise as mediators. Many are enjoying what has been described as the bonus years where individuals still retain good health and energy whilst having the advantage of considerable experience. This pool of suitable mediators is regularly being supplemented by legal and other professionals leaving firms who wish to shed high earning individuals at the top in favour of more junior, but less expensive, fee earners.

The legal system itself is arguably becoming more and more unattractive to any potential litigant. The law in itself has failed to modernise with many significant issues in litigation being resolved by a protracted trawl through legal authorities, usually decided in vastly different social and economic conditions. Many litigants are disappointed with the quality of decision making. The Court of Appeal has followed a misguided practice of heroic resistance to appeals on findings of fact. This has allowed Trial Judges to decide cases in the way that they wish, provided that they present the ultimate decision as resting on factual findings and impression of witnesses. This can appear to the litigants to be quasi discretionary and lacking in judicial rigour. In addition to judicial complacency about the quality of the law and decision making, there is an accurate perception that the legal system itself is creaking, if not grinding to a halt. Consistent with J K Galbraith’s famous description of public squalor amidst private affluence, the pretext of austerity has resulted in savage and ongoing costs in the provision of a court system.

Senior Judges convincingly describe the effects of these cuts in terms of decaying buildings, overworked staff and demoralised Judges. These public statements, whilst accurate, do not necessarily encourage individuals to want to access the court system to resolve disputes. It is difficult to imagine that a hotel or restaurant chain which was described by its proprietors in similar terms would attract many.

The increasing use of mediation therefore should come as no surprise with its clear advantages of being cheaper and quicker. Further, mediation involves addressing the parties’ real concerns as opposed to those which the law has historically considered to be the most appropriate way of resolving a dispute. If mediation works at its best, then the parties go home if not completely happy, at least content that the solution achieved was swift, economic and reasonable in all the circumstances.

Written by Charles Feeny and Sam Irving.

Mediation by Ana Samuel – My Planet Liverpool Magazine, January 2018

This article by Ana Samuel appeared in My Planet Liverpool in January 2018. View the PDF here

TO MEDIATE OR NOT TO MEDIATE?

“To be, or not to be: that is the question: Whether ’tis nobler in the mind to suffer the slings and arrows of outrageous fortune, Or to take arms against a sea of troubles, And by opposing end them?”

Hamlet: William Shakespeare

Whilst Hamlet, forlorn at the death of his father, struggled internally with issues of life and death, the above quote arguably applies to any dispute; there is the option to back away from the dispute and accept your lot or fight against it. Either option, especially in a workplace context, results in on-going problems and for one, if not both parties, an inherently unsatisfactory outcome.

Although Hamlet may not have had the option of a mediator open to him, it is of note that mediation as a form of settling a dispute can be traced as far back as Confucius and the Roman Empire. It is therefore of no surprise that mediation is a theme that keeps on rearing its head, more recently with significant emphasis being placed upon it by the Courts, in order to avoid the process of litigation.

Offering mediation as an alternative will not only cut the time taken to achieve a result, but it will also be significantly more cost-effective for employers. Not only is it cheaper in the long term but less time is also lost preparing for, and undertaking the full legal process, as mediation can be organised and settled within a week.

While it has a success rate of between 80-90%, mediation also means the matter is kept confidential between parties and the outside world, meaning the effects on the business will be kept to the minimum.

SO WHAT ARE THE POTENTIAL GAINS OF MEDIATION?

  • Mediation gives all parties the ability to maintain/restore existing relationships.
  • There are reduced costs compared to an expensive litigation process.
  • Certainty, in that the process of mediation and a decision remains in the participants’ own hands as opposed to being decided by a Judge.
  • Flexible solutions and settlements that may not be open to a Court.
  • Mediation is a speedier process.
  • Mediation is a process that is easily understood by those not legally qualified.
  • Mediation is a less formal and time-consuming process.
  • Mediation is a process tailored to the participants’ individual requirements.
  • Mediation allows for the ability to hold ‘without prejudice’ discussions.
  • Mediation gives an opportunity to better understand each parties position and the relative strengths/weaknesses of the case.
  • Mediation gives the ability to continue down the formal legal route in the event that an agreement cannot be reached.
  • Mediation is a process that can be utilised both pre proceedings and at any stage during proceedings.

WHAT TYPES OF CASES ARE SUITED TO MEDIATION?

  • Contractual disputes
  • Workplace disputes
  • Commercial disputes
  • Personal Injury claims
  • Employment claims
  • Property disputes

In fact mediation lends itself to all situations, be it legal or not, where individuals or companies have reached an entrenched position.

In commercial environments, where maintenance of professional relationships and cash flow are key, more and more businesses are electing to participate in mediation at an early stage of a dispute, given the pragmatic and financial advantages of doing so, rather than embark on a lengthy litigation process.

In 2016 a Mediation Audit found that by utilising the process of mediation business as a whole had saved approximately £2.8 billion in management time, relationships, productivity and legal fees, with an average success rate in the order of 86%.

As such, it is fortunate that Hamlet was not contemplating whether to mediate or not, otherwise the world would have been deprived of one of the most well known soliloquies, the answer being self-explanatory and not warranting debate!

Mediation fees can be as low as £200. Complete Mediation has a diverse team of experienced mediators, a number with Employment Law backgrounds, who can assist you in resolving
your dispute.