20 June 2016
Mediation vs litigation: which is right for you?
Recognised for his mediation skills by Legal 500, partner Nick Hallchurch has helped parties secure agreements in over 90% of his mediation meetings. He is also an experienced litigator with 30 years’ experience, making him well placed to advise clients on which is the best option for them.
Business disputes, property disputes, personal disputes, employment disputes – whatever the issue, and whether or not legal proceedings are underway, all lawyers who conduct litigation are advised that they should now routinely consider with their clients whether their disputes are suitable for Alternative Dispute Resolution (ADR) such as mediation.
Although it may feel like a compromise, particularly when some clients feel they are missing out on their ‘day in court’, there are very good reasons as to why the courts prefer that mediation is pursued in the first place when a dispute arises.
Here, Nick outlines some of the top reasons to consider mediation.
It takes just two to three weeks to set up a mediation meeting, which typically lasts for up to one day before an agreement is finally reached. Litigation, on the other hand, can take 12 to 18 months before the trial comes to court.
Terms of settlement
The terms of settlement are much more flexible than at trial. The parties create their own terms which are not restricted to settlement of the issues in the litigation. A mediator may be able to provide solutions which are beyond the powers of the court to provide, and the fluidity of mediation means that parties can negotiate, communicate their point of view and are personally involved in the settlement.
Discussions within a mediation meeting are entirely confidential, as opposed to a litigation trial where the final decision and rationale will be placed in the public domain for all to see.
Mediation is a medium that may suit business owners and managers, as they are natural decision makers and negotiators who want to reach a conclusion as soon as possible. Mediation offers them the platform to put these skills to good use.
However, although mediation is typically more cost effective and less time intensive, there are some issues to be aware of:
- A lot of preparation is still needed in the run up to mediation meeting. It can also be made more difficult as each party is not obliged to disclose all relevant documents during mediation, whereas they will have to during the course of litigation.
- Not all cases settle. It can be frustrating to spend money and time preparing for a mediation meeting when you’re not guaranteed a conclusion by the end of the process.
- Be aware that although one party might agree to the mediation, they have every right to not participate in the process constructively and instead use the meeting as a way to weigh up their opposing witnesses before they decide to take it to trial.
- Ill-will can be amplified if a conclusion is not reached or if the parties behave badly.
It is vital to remember that the court typically frowns upon parties that don’t choose mediation in the first instance and they can (and do) penalise parties who are considered to have unreasonably refused a request to mediate by slashing their costs.
So how do you choose the right mediator for you?
Word of mouth is invaluable, however it is worth reviewing legal directories such as Chambers and Partners or Legal 500 UK for independent ratings on the quality of mediators in your area.
It is also worth getting in touch with your lawyer who will be able to help you select a mediator or recommend a mediator within their firm.
Alongside Nick Hallchurch, B P Collins has two other qualified mediators with the Centre for Effective Dispute Resolution (CEDR), Matthew Brandis and Craig Williams, further strengthening the firm’s ability to handle disputes, whether through mediation or litigation.