Mediation and Alternative Dispute Resolution

Mediation is increasingly finding favour as a means of resolving disputes in preference to a fully contested Court action.

Litigation takes time and sometimes years to complete, can be expensive and is very much an all or nothing process. In most cases one party wins and the other losing party faces a substantial costs bill. The prevailing view is Court proceedings are a last resort except in cases where there is a point of law to be decided, assets in need of urgent protection or the other party is intransigent.

There is an obligation upon all potential litigants to consider alternative dispute resolution including mediation. In fact, the Courts will enquire about what efforts the parties have made as to ADR. Early resolution often has commercial benefits. Mediation can preserve reputations and relationships. It avoids an escalation of legal costs provided it is pursued at an early (but appropriate) stage of the case. It removes the inherent risk of litigation such as the Judge who takes a particular dislike to a witness in a case dependent on oral evidence.

Mediation remains a voluntary process and inevitably requires a degree of compromise on both sides. It enables issues to be agreed upon as part of the settlement which a Court could not order. Any terms agreed at mediation are recorded in a binding written agreement signed by all parties. The process is confidential and without prejudice which means that, if unsuccessful, what was discussed and any concessions made cannot be relied upon in subsequent proceedings.