What is mediation and why might it be a better way of resolving commercial disputes?
Mediation is a flexible process conducted confidentially in which a trained neutral and independent mediator actively assists people and/or organisations to find a negotiated settlement for a commercial dispute. Both parties are in ultimate control of any decision to settle and the terms of such settlement; nobody has to agree to anything unless they want to.
There are many reasons why mediation can be a more effective, and less destructive way of resolving issues than going through the courts:
Successful – over 90% of cases that go to mediation settle on the day, or soon afterwards.
Quick – most mediations are arranged within a few weeks, or even days, and the formal mediation session usually lasts for one or two days only. Mediation can take place in person, or increasingly, on-line.
Cost-effective – compared with litigation and arbitration processes, mediation is a much less expensive way of resolving disputes. Even if the mediation doesn’t lead to a settlement, it may still lead to considerable savings in case management costs going forward.
Confidential - mediation is confidential and 'without prejudice'. That means that nothing said in the mediation is admissible as evidence in legal proceedings. It also means that each party can safely investigate and weigh up a whole range of potential options with the mediator secure in the knowledge that nothing will be shared with the other side, unless and until they ask the mediator to raise it with them.
Flexible – mediation is suitable for any kind or size of dispute, and there is no limit to the potential means by which the dispute can be settled, whereas a court process is usually limited to a potential award of damages.
Safe - your legal rights are unaffected. This means that if you can’t reach agreement, you can still revert to court proceedings. Any settlement that is reached is only legally binding once put into writing and signed by the parties.
The ‘bottom line’ is that mediation allows business people to save a lot of time, money and uncertainty and, instead of the court imposing an outcome on their dispute, mediation enables them to make their own decisions based on a clear sense of the commercial options and risks involved.