Mediation vs. Litigation

The existing Courts System has neither the capacity or funding available to continue without significant change. That change is coming rapidly as Parliament and Judges combine to push litigation cases away from the courts and towards alternative approaches to dispute resolution - Mediation.

Mediation is no longer interpreted an admission of weakness in a party's position. Instead, it is increasingly seen as the highly sensible and commercial way to approach dispute resolution and a necessary first step to avoid a judge refusing to hear the case or ruling not to award costs, even to the winning party.

The future will see significant growth in the use of Mediation, irrespective of the natural advantages of mediation over litigation, as summarised below:

 

Benefits of Mediation

Litigation

The Mediator is: independent; neutral; non-judgemental; non-advisory, and will not comment on any personal perception of relative strengths or weaknesses

Your solicitor provides advice and assistance on legal and commercial matters

Parties would typically have their advisor accompany them during the mediation process

The cost of legal advice and associated with a court case are much higher

The parties remain in control as they have agreed voluntarily to participate in mediation and are free to end the process at any time

Once begun, litigation builds its own momentum of direction and escalating cost

What is said/written in a mediative process remains confidential and is inadmissable as evidence in court - "without prejudice"

All court proceedings are conducted are in the public domain

The parties in mediation are obliged to attend "in good faith" - they attend with the intention of finding fair settlement - it is not a win or lose conversation

The mindset of parties to litigation can become very polarised and focussed only on winning legal judgement

The cost and time required for mediation are known, or can be estimated with a high degree of accuracy. Mediation would typically conclude in a single day.

Litigation carries major unknowns and risks: time/cost; the value of any Court award; the odds of winning

The likelihood of reaching agreement at mediation is typically in excess of 80%

Often agreement is reached on the court room steps before the case is heard but much time and cost have necessarily been incurred preparing for litigation

Mediation enables fluid and open dialogue

Dialogue between parties is conducted under the shadow of the law which naturally restricts openness of exchange

Agreement reached at mediation is legally binding

Legally binding also

Mediation is focussed on finding a fair agreement that is commercially acceptable to both parties

Litigation is focussed on winning in court

Mediation is able to find a solution that lies completely outside any remedy that a court or tribunal may award

Judgements need to prescriptively follow the law - no tailoring

Mediation can focus exclusively on the future

The courts will typically have to concentrate on the history and bring in witnesses to recount it.

The parties attending mediation must have authority to settle on the day and accept that the agreement will be legally binding

The Judge is an impartial decision-maker in application of the law

 

Footnote: The comments on litigation above are felt to be a fair and balanced assessment of how a litigation process is typically conducted. Of course there are many highly commercial lawyers who, in effect, take a mediative approach with an eye on commercial return for their clients. Even with this proviso, most disputes lend themselves to more effective resolution through mediation, above litigation.    

David Fatkin

David Fatkin ACA

Accredited Civil and Commercial Mediator
Registered Civil Mediation Council
Member of Institute of Chartered Accountants in England and Wales
Member of Lancaster Chamber of Commerce
Associate Ampios Management Partners Limited

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