Mediation Civil and Commercial in UK. ADR Alternative Dispute Resolution

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Unfortunately, whether in commercial or private life disputes are going to occur. Until recently the only method of resolving disputes was through the adversarial process of litigation. Whilst litigation remains in many cases the only appropriate means of dispute resolution, a new and innovative method is now available, namely mediation.

Mediation is a process by which an independent, trained Mediator mediates an agreed resolution to a dispute. This is particularly useful in commercial cases where the parties to the dispute wish to have an on-going commercial relationship. In family cases it can also limit the inevitable bitterness and acrimony that can arise.

We are fully committed to mediation. The firm is a member of the ADR Group, with three trained mediators within the firm, (and more to come). We are a founder member of the Hull Dispute Resolution Centre, which provides independent commercial/civil mediators for commercial disputes as well as "Mediation for the Family", which provides independent family mediators to assist in resolving family and matrimonial disputes. Rollits Solicitors

Civil and Commercial Mediation/Alternative Dispute Resolution

In April 1999 fundamental changes took place to the way civil cases are dealt with by the courts.

As part of the management of a case by the court the parties will be required to explore appropriate and alternative dispute resolution. This will involve mediation.

It is widely envisaged that a new culture will develop of parties seeking mediation at an early stage and before court proceedings are commenced.

Mediation is a private dispute resolution process in which a neutral person helps the parties to try to reach a negotiated settlement.

Brian Lawlor is a specialist in the field of Alternative Dispute Resolution and is a member of the Centre for European Dispute Resolution and the Association of Northern Mediators. He is also a member of the Association of Personal Injury Lawyers.

Brian offers mediations at times and venues convenient to both parties. Prices can be agreed per session (half day, full day, more than one day) or per hour. Morecrofts Solicitors

Civil & commercial mediation - FAQ for solicitors

1. Isn't mediation just another type of litigation?
2. Where does mediation fit in with litigation?
3. When should mediation be used?
4. Does mediation work?
5. Won't the opposition just use mediation as a 'fishing expedition'?
6. What part do I play in mediation?
7. Is mediation just a soft option to litigation?
8. Why do you say mediation is good value for money?

1. Isn't Mediation just another type of negotiation?
Yes and No. To the extent that Mediation takes place on a "Without Prejudice" basis and it seems relatively informal there are some similarities. Many experienced litigators feel they are already mediators when negotiating and that Mediation can add nothing to their abilities. If so, they misunderstand the nature of formal Facilitative Mediation and its power to achieve settlement. All litigators have experience of the 'round the table' meeting that didn't work because the parties and their advisers became entrenched in their respective positions and refused to give ground. What was missing was the help of a neutral third party to manage the process, tease out the real issues, break deadlocks and ease the parties to their own settlement of the issues.

2. Where does Mediation fit in with litigation?
Mediation is just another weapon in the armoury of the dispute resolver, along with litigation, arbitration, adjudication, etc.. It is not a panacea but it is a relatively new technique that can have dramatic results, and should be actively used by all litigation lawyers. Mediation is not suitable where a precedent or declaration is required, nor if emergency and/or injunctive relief is necessary.

The Civil Procedure Rules make it vital for everyone dealing with dispute resolution to identify and deal with disputes appropriately and proportionately from the word go. The CPRs state that litigation should be 'a last resort' and actively encourages ADR/Mediation. A litigator ignores these facts at his/her client's peril. The courts are imposing penalties, usually via costs orders, where they consider clients or their advisers are failing to consider and advise on the use of mediation when this would have been appropriate and saved time/cost.

3. When should Mediation be used?
Increasingly, as advisers become more familiar with its use, Mediation is being used before litigation starts, but many Mediations take place during court proceedings particularly when the court stays proceedings for a period to allow this to happen. The experience of those who have used the process is that Mediation brings the 'on the steps of the court' effect forward to enable settlement to be achieved sooner.

There are times when the parties don't have sufficient information or the dynamics are wrong for negotiation to take place. In this situation it will probably also be inappropriate to Mediate, lawyers, however need to remember that clients want disputes behind them and to get on with their lives again as soon as reasonably possible. In most cases they would prefer a robust commercial settlement now, rather than take the risk of wasting time and money chasing the illusion of a 'perfect' result at court.

Every case is different, but as a rule of thumb as soon as the parties can start negotiations Mediation should be considered.

4. Does Mediation work?
Yes. CEDR (the Centre for Effective Dispute Resolution) have through their Mediations achieved a higher than 85% success rate, and our experience supports this. Even this figure doesn't reflect the true success rate as a substantial number of the few Mediations that 'fail' on the day are settled within the following few weeks. Also, almost without exception even the few failures will have narrowed issues and moved the process forward.

5. Won't the opposition just use Mediation as a 'fishing expedition'?
This is a fear of some litigators who have not used Mediation, but experience shows that it is really a myth. We are now, with the CPRs, in a world where laying cards on the table is demanded and keeping them close to the chest actively discouraged and carries penalties. Mediation is 'without prejudice' and you and your client have far more to gain from its opportunities than you are likely to lose from any risks. Unless there is a genuine and real fear of this in a particular case don't let it put you off Mediation.

6. What part do I play in Mediation?
Because the Mediator gives no advice nor makes any decisions on the merits the parties must have access to all the legal, financial and other advice and representation they need on the day. A solicitor 'advocate' can provide enormous help particularly when actively seeking an appropriate resolution to the dispute with their client. This can be a far more challenging and demanding role than is at first expected.

7. Mediation is just a soft option to litigation?
You couldn't be more wrong! Mediation does not involve finding the middle ground between the parties, although in some cases that might be where everyone ends up. It takes a great deal of time and effort by the parties and their advisers and much hard bargaining and stress. It is no soft option to move those involved from entrenched positions to a signed agreement which deals with all issues in just a few hours and often resolves in a day a dispute that has been going on for years.

8. Why do you say mbediation is good value for money?
Clients do not enjoy dealing with disputes and they dislike litigation even more. They don't want to be involved with the legal system if they can avoid this - it is a 'distress purchase'. They put a high price on the peace of mind that comes from sorting things out, knowing where they are, and being able to get on with their life and work again. Any technique that can provide this fast, and at reasonable price and risk, is seen as being excellent value for money. Mediation delivers this in most cases and solicitors should offer the opportunity of it to clients whenever this is appropriate. Making a recommendation that can provide such benefits can only reflect well on the adviser.

9. Who do I contact if I want to find out more? Please contact Christopher Butterworth or Deborah Boylan Raworths solicitors

Resolving Disputes Cost-Effectively

Over the last ten years or thereabouts, the practice of adopting mediation and Alternative Dispute Resolution (ADR) has developed rapidly in the United Kingdom . Approval for mediation/ADR has been expressed by senior members of the judiciary as well as in various reviews that have been carried out by the Law Society.

Although mediation has proved to work successfully in matrimonial disputes, an increasing number of civil disputes are now being settled by way of mediation and ADR. Civil Litigation lawyers are now encouraged mire than ever before to use mediation before trials unless they are able to provide specific reasons for exemption.

It is clear that some civil cases will inevitably proceed towards a final hearing or trial, whilst other cases will be more suitable for settlement by agreement. Settlement of litigation out of court is already an essential feature of our Civil Justice system. It is often the case that as parties approach the final trial, they begin to express a preference foe settlement out of court. This usually occurs at a stage in the litigation when both parties have already incurred substantial legal costs.

Accordingly, mediation allows parties to explore settlement at an earlier stage in the litigation and puts in place procedures that can assist in resolving cases in a more pragmatic and cost-effective manner.

Mediation offers a more structured negotiating forum to parties compared with traditional out of court settlement negotiations. For instance, high value civil/commercial cases will benefit from having the involvement of a mediator who can through effective mediation tactics “tease out settlements from difficult negotiations”. In the normal course of events, any disagreement between parties would result in a flurry of correspondence, threatening termination of a relationship or contract followed by legal action. The added advantage of mediation is of course that they will reach a speedy settlement reflecting commercial and personal interests as well as engaging in a cost-saving exercise. This is even more the case where parties need to preserve their business relationships.

It has however been the case that parties are reluctant to become involved in mediation even though their case could be amenable to formal mediation. Getting parties on board is usually the difficult task. It has often been the case that one party refuses to agree to use mediation because for example, they assume that it implies some form of award or procedure to split the difference. Furthermore, it is also the case that parties are in fear of the unknown and believe that their attempts to mediate will be perceived as a sign of weakness.

For reasons such as these there has in the past been a limited use for mediation within civil litigation. It is imperative however that parties consider the appropriateness of using mediation in their case at the outset. These procedures are designed to ensure that an effective forum can be put in place where lawyers and clients want to actively have a go at settlement or even issue refinement at the earliest feasible stage.

This is also the logic that is applied to most commercial contracts which contain ADR clauses to direct negotiations in amore objective third party forum. Mediation is a positive step that parties can take to resolve a dispute that will inevitably have financial implications for them both.

A successful mediation conducted by a trained mediator and involving committed parties can lead to a “win-win” situation, where both parties come away from the dispute with the feeling that they have achieved something. What is clear however is that many individuals are missing out on a valuable mechanism that can be used to their advantage to avoid lengthy and expensive litigation.

Gurpreet Birdi

Chadwick Lawrence Solicitors