Tips on mediation as an alternative to litigating at court

What is mediation? Mediation is the answer to avoiding high legal fees, months of distress and frustration, and the rigidity of a court timetable. In simple terms it is a way of resolving legal disputes without having to attend court. Sounds like an ideal scenario but both parties have to agree to choose the mediation

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What is mediation?

Mediation is the answer to avoiding high legal fees, months of distress and frustration, and the rigidity of a court timetable. In simple terms it is a way of resolving legal disputes without having to attend court. Sounds like an ideal scenario but both parties have to agree to choose the mediation route. If both parties do then an impartial third party will guide the parties to an agreed settlement. The mediator will only encourage the parties to come to an agreement and will not impose a decision or point out who has a stronger case.

The difficult element of mediation is trying to convince, normally the wronged, party that it provides a better alternative to court. The court system is geared towards placing blame by highlighting wrongdoing and placing blame on one party. Understandably the wronged party may want their day in court to have their case supported by the courts, but this approach is not always constructive or cheap. Mediation on the other hand finds common ground and tries to help both parties to find the best outcome for their situation.

How does it work?

Mediation requires all parties to agree on this method of approach. It is possible to approach a mediation organisation to assist you in convincing the party that this may be a suitable approach.

Once all parties have agreed the choice of mediator should be decided. Normally the mediation organisation will choose a mediator who has relevant experience.

A time and venue will be agreed where the mediator listens to both parties and allows them to communicate the issues or the case. The mediator will probe further in order to uncover the relevant issues and challenge what is being said.

The mediator will identify why the parties decided to collaborate in the first place and the first signs of the relationship breaking down.

The mediator will compare the two points of view presented in order to understand what is agreed and not agreed on and measure the resolves of the two parties to determine how strong each party thinks their own case is. This will give some indication on how willing each party will be to settle or fight their case.

Some parties may feel reluctant in giving certain sensitive information to the other party. The mediator is aware of this and will never pressure a party to reveal information they would rather disclose in private.

The confidentiality element allow the parties to trust the mediator and enables them to discuss their case without reservations. This method of approach will allow the mediator to help the parties understand their and their opponent’s case without an adversarial tone, which will more easily lead to an agreement.

If no agreement has been reached neither party is obliged to be bound by any outcome. Most agreements are ultimately honoured and binding because the parties put a lot of effort into reaching an agreed settlement upon terms they were happy to follow. This provides a contrast from the imposition of a court decision.

Why mediate?

There are a large number of reasons why parties should consider mediation instead of litigating. The parties retain control and avoid the uncertainty of an undesirable, binding court settlement. The disputes are resolved very quickly (normally within one day) and is normally much less expensive than litigation. The mediation can take place any time and no party is bound to continue with the mediation process if they do not want to. The venue is flexible and everything said during mediation is confidential.

David Swede – head of commercial law department and accredited mediator

My colleague David Swede is a fully accredited mediator – I would highly recommend you contact him either as a mediator or to represent you in a mediation. he is a highly experienced solicitor, an accomplished businessman and has an excellent disposition for resolving legal issues.

David Rosen

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