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Mediation is a form of Alternative Dispute Resolution (ADR) which allows parties to resolve conflicts outside of court. Unlike litigation or arbitration, mediation does not provide a binding solution. Instead the participants are encouraged to agree a settlement with the assistance of a neutral third party. Facilitative mediation is most common and involves a mediator who asks probing questions and attempts to allow each side to see the opposing perspective, thus facilitating a mutual settlement rather than passing judgement on the case.
There are a range of reasons why parties may choose to mediate. The UK courts are now actively advocating the use of alternative dispute resolution in an attempt to reduce the number of cases coming to litigation. Mediation is also becoming a compulsory first step for certain types of cases, such as family and employment disputes. However, there are many much more practical factors which have contributed to the ever-increasing popularity of mediation.
The fee of a mediator is comparable to the fees of barristers. Legal representation is not compulsory but even if a client chooses to have a solicitor present, the combined cost of a mediator and a solicitor still does not come close to the astronomical fees now routinely incurred in litigation.
Mediation is a confidential process and it is also without prejudice; meaning nothing said during mediation can be revealed or admitted to court except in very rare circumstances where fraud or coercion is involved. For this reason, many parties choose to mediate in order to save face, preserve business relationships and avoid the dispute being publicised. Privacy can be worth so much that it results in one party agreeing to a much lower sum in settlement of their claim in return for the dispute being resolved discreetly.
A court case on average takes several months but many high profile and complex claims can drag on for years. This is especially true if the case is appealed. By comparison, if the parties agree to mediate, a mediation can be scheduled to take place within a week, if not less, and a settlement can be agreed within one day provided all the participants are fully engaged and willing commit to the process.
Given the increasing endorsement of mediation as a highly effective form of dispute resolution, young lawyers and law students would be well advised not dismiss it. The UK legal system, like may others, has always revolved around litigation and court-based dispute resolution is still the ultimate way to get a binding decision in times of disagreement.
However, 80% of the cases that go through mediation settle so its effectiveness cannot be ignored. Simply understanding the process and remaining open-minded towards it allows future lawyers to be better legal advisers. After all, clients will receive the best advice if their lawyer can present them with all the possible options to solve their problem instead of being laser-focused on litigation.
If you decide to go as far as training to become a qualified mediator, the course will equip you with skills which are highly relevant outside of mediation. For instance, effective listening and the ability to easily elicit information from someone are invaluable interview techniques and can even come in handy in daily life.
More and more universities are incorporating mediation projects into their extra-curricular societies and this can be a good way to learn about this form of dispute resolution. So try not to see the role of a lawyer as something exclusively connected with court trials and instead remember that even the most difficult disagreements could be resolved once the parties start talking and listening to each other.
Words: Mariya Rankin
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