Mediation is a process in which an independent third party (the mediator) helps the parties who are in dispute to find a solution to their differences and to settle their dispute.
The mediator is not a Judge, they do not give a verdict on the rights and wrongs of the dispute. They do not present a settlement. Instead they assist the parties to find a settlement which suits both parties.
And it works. Some of the latest research shows that nearly 90% of cases settle at, or very soon after, mediation.
Whilst there’s a structure that each mediation tends to follow, there is no formal process as such which helps adapt it to what the parties need.
It can even be done, beginning to end, without the parties ever seeing the other.
Whilst there are usually opening statements in a joint session, I’ve been to successful mediations where the parties do not see each other all day, staying in their respective rooms whilst the mediator goes backwards and forwards between the parties, unlocking their real interests, prizing out common ground, finding a settlement that helps satisfies both parties.
An added advantage is that within the mediation process everything is confidential.
This gives the parties a “safe space“ in which to explore settlement and ultimately come up with a resolution to the dispute.
Mediation can help the parties in many ways:
Overall the parties retain control over the outcome and any solutions. I’ve never known anyone regret a settlement reached at mediation.
It can even allow a relationship to live on after the dispute has been resolved, something that rarely happens after a Court case.
One example is where I was involved in a mediation with a ‘big box’ retailer who had fallen out with one of its suppliers. The ultimate settlement led to increased orders against the background of a new found understanding of each other’s business model, quality control and cash flow.
Effectively they were both unaware of the ‘rules of the game’ that applied to the other party’s business. Once that awareness dawned, they could see a way of profitably working together.
Has that ever happened at the end of a Court case?
The mediator is not a Judge, they do not give a verdict on the rights and wrongs of the dispute. They do not present a settlement. Instead they assist the parties to find a settlement which suits both parties.
And it works. Some of the latest research shows that nearly 90% of cases settle at, or very soon after, mediation.
Whilst there’s a structure that each mediation tends to follow, there is no formal process as such which helps adapt it to what the parties need.
It can even be done, beginning to end, without the parties ever seeing the other.
Whilst there are usually opening statements in a joint session, I’ve been to successful mediations where the parties do not see each other all day, staying in their respective rooms whilst the mediator goes backwards and forwards between the parties, unlocking their real interests, prizing out common ground, finding a settlement that helps satisfies both parties.
An added advantage is that within the mediation process everything is confidential.
- Nothing discussed in the mediation can be discussed outside of it.
- The discussion between the mediator and each party to the mediation is confidential between the two of them.
- And all of the discussions are “without prejudice“ meaning that they cannot be referred to in court proceedings.
This gives the parties a “safe space“ in which to explore settlement and ultimately come up with a resolution to the dispute.
Mediation can help the parties in many ways:
- They avoid litigation where there is a winner and a loser, where the ‘loser’ is likely to pick up most or all of the litigation costs. Great if it’s not you but there is no guarantee which one of you will end up paying.
- It gives the parties freedom of choice to find a settlement that is not available to a Judge. The parties might decide on a 60/40 split, they might involve control of an asset that is not involved within the dispute. There is no limit for the inventiveness of the settlement.
- The parties have freedom to move on from the disputes, emotionally, with their business, with their lives.
- The process gives the parties the ability to use their resources the way they want, rather than having to spend further money on solicitors, barristers, experts, trial. The list goes on.
- The parties can retain privacy. No threat of the dispute and the terms of the settlement becoming common knowledge, either in the press or in the industry.
- It frees up time and emotional energy that would otherwise be used in fighting the dispute. Litigation takes a lot of time. And whilst the parties are thinking, worrying, about it, they reduce their bandwidth for everything else in their lives, be that business or family life.
- It frees up management time - litigation and disputes can strip even large organisations of time that would be spent managing its business
- Using mediation as a way of trying to settle a dispute will demonstrate budgetary concerns to the parties’ stakeholders by doing everything they can to avoid high cost, high risk litigation. Better to tell your bank,your boss, your shareholders, that you are doing everything to get rid of the situation than to keep getting an extension to the overdraft to fund the litigation.
Overall the parties retain control over the outcome and any solutions. I’ve never known anyone regret a settlement reached at mediation.
It can even allow a relationship to live on after the dispute has been resolved, something that rarely happens after a Court case.
One example is where I was involved in a mediation with a ‘big box’ retailer who had fallen out with one of its suppliers. The ultimate settlement led to increased orders against the background of a new found understanding of each other’s business model, quality control and cash flow.
Effectively they were both unaware of the ‘rules of the game’ that applied to the other party’s business. Once that awareness dawned, they could see a way of profitably working together.
Has that ever happened at the end of a Court case?
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