Our columnist on how mediation can help avoid further costs and risk
The Importance of Mediation
At some point you may need to instruct a lawyer and you might think that inevitably a dispute will lead to a trial It might come as a surprise that, in modern English dispute resolution, it isn’t automatically assumed by the courts, or the lawyers, that a dispute will end up going to trial.
Quite the opposite. Any party unfortunate enough to find themselves involved in litigation will be expected by the courts to take all reasonable steps to try and settle its case before trial and, ideally, before legal proceedings have even been issued.
Mediation is one possible method of “Alternative Dispute Resolution” (ADR). Since the Civil Procedure Rules were introduced in 1999, ADR has become increasingly important, and the profile of mediation has grown hugely as a result. Other elements of ADR can include written or verbal negotiation and “without prejudice” meetings between the parties. Mediation relies on the skills of an independent mediator and is seen as a good way of settling a case by agreement between the parties, which avoids incurring further costs and risk.
Mediation will often take place at a neutral venue, with the mediator shuttling between the parties (who sit in separate rooms) trying to find a workable solution to the problem. It tends not to focus on the legalities of the dispute, but on a broader attempt to get the parties to find a solution they can both “live with”.
There are many practical reasons why parties might wish to settle their case at mediation. The costs of legal disputes can be punishing, and no party can be entirely sure of what the outcome would be if the case goes to trial. Every party needs to be aware that, if they lose at trial, then they will be expected to pay their opponent’s reasonably incurred legal costs. Litigation, particularly for individuals and small businesses, can be a draining and upsetting experience.
There are good tactical reasons to mediate. It has become clear, from numerous court decisions, in recent years that any party refusing to consider mediation is taking a risk. Refusing to mediate will not impact on the outcome of the case but it could impact on the costs. Courts are often prepared to make orders penalising parties who have won their case at trial.
Even if you think that your case is so strong that there is no point in mediating, you could be at risk of a negative costs order at the end of a trial.
Whether it is worth taking that risk over the costs of the case is a question that will always require very careful consideration.
Dax Keeling is the commercial litigation solicitor at Bell & Buxton email@example.com