Why Mediate?

The Problem with Adjudication

Even as early as 2010, people had begun to question the effectiveness of adjudication.  

"It has now adopted all the hallmarks of a 'mini litigation' ... Most adjudications start with rather pointless jurisdictional and procedural wrangling.  They continue with lengthy position papers that are pleadings in disguise.  Parties then produce reports from independent programmers or cost advisers and even witness statements.  Finally, as we have seen, despite the exemplary lead taken by the Technology and Construction Court, there is endless argument about enforcement." (Ann Minogue)

What if you didn't need a lawyer to settle a dispute?

The traditional way of handling business disputes has become almost obsolete.  You can now choose to approach dispute resolution with the same spirit that you bring to every other aspect of your business.  Alternative Dispute Resolution (ADR) offers parties a choice of dispute resolution methods.  These include early neutral evaluation, mediation, adjudication, independent expert appraisal and last offer arbitration.

The ability to avoid disputes in the first place is the best dispute resolution tool of all.  When issues are settled with our help, parties engaged in conflict are more likely to preserve their ongoing business relationship.  This is because we help you to address that conflict early in the dispute escalation cycle and to focus on your common interests.

What is mediation?

mediation - a voluntary, non-binding and private dispute resolution process in which a neutral person helps the Parties to a dispute or other impasse between them to try to reach a negotiated settlement.

Lord Neuberger, President of the Supreme Court, places the commencement of meaningful mediations in the UK at around 1997.  Mediation has therefore had nearly 20 years to evolve, mature and become a useful business tool.

In most cases, mediation cannot take place unless the Parties agree to enter the process.  Mediation is not possible without the active participation of all Parties and ceases if one Party should leave the process; which they are generally free to do at any time.

Mediation is also truly voluntary, as entering the process does not bind the parties to reach settlement.  True agreement can only come about on the authority of the Parties concerned as the mediator has no authority to make a binding determination.  If a settlement is reached the agreed terms when reduced to writing will form part of an enforceable contract.

The mediation process is both "without prejudice" to any existing litigation (or adjudication) to the extent the law permits.  This means the Parties can conduct themselves in the mediation, for example, by disclosing information, expressing views, making suggestions or offering concessions, relatively safe in the knowledge that this will not preclude them arguing a different position should the matter proceed to trial (or to adjudication).

The role of the mediator and the confidential nature of the mediation negotiations helps parties to focus on and realise their true needs and interests.

What is mediation advocacy?

mediation advocacy - (1) the promotion of mediation as a means of resolving disputes; (2) the skill involved in representing clients in mediations.

mediation advocate - (1) a person who promotes mediation as a means of resolving disputes; (2) a person who represents clients in mediations.
Mediation advocacy is the technique of presenting and arguing your case, needs and interest in a non-adversarial way.  It recognises the following:

  • The negotiated outcome to a dispute is usually more satisfying, more effective, more workable, more flexible and more durable than an Order imposed by a court or a Decision made by an adjudicator;
  • The Parties to a dispute should control its process and its outcome;
  • The Parties to a dispute should be assisted by their professional advisers or representatives in coming to a settlement that both deals with all matters in issue and also meets their true needs and wider interests;
  • Parties to a dispute should have regard to helping the opposite Party secure its needs whilst at the same time preserving their own.

What the Courts say about Mediation...

"...it depresses me that solicitors cannot at the very first interview persuade their clients to put their faith in the hands of an experienced mediator ... to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months."

"... the boundaries of bigotry can with tact be changed by the cutting edge of reasonableness skillfully applied by a trained mediator.  Give and take is often better than all or nothing."

Lord Justice Ward in Faidi v Elliot Corporation [2012] EWCA 287 at [39-40].

and more recently...

"Finally, I observe that despite my attempts at the CMC to reduce the parties' costs budgets to more proportionate figures, this will still be an expensive case to fight having regard to the amount at stake.  It is in my view a case which cries out for mediation."

Hon Justice Males in Vivek Rattan v UBS AS, London Branch [2014] EWHC 665 (Comm) at [13].

and further still...

"It seems to me that a mediation would resolve these relatively straightforward quantity-surveying disputes between the parties.  They are much better off going down that route..."

Hon Justice Coulson in Paice and Springall v MJ Harding [2015] EWHC 661 (TCC) at [70].

whilst the President of the Supreme Court says:

"...I believe that mediation is a good thing and should be encouraged for reasons which are based both on practicality and on principle."

Lord Neubeger, Keynote Address, Civil Mediation Conference 2015