“My Solicitor is Tough as Old Boots – We Won’t Be Having Any Discussions” Why You Must Now Always Consider Mediation if You Are Involved in Civil or Commercial Claims

That old expression often used by litigating lawyers “…see you in court” and echoed by their clients to an opposing party used to cause a nervous shudder in the mind and body of the hearer of the message.

Now it doesn’t. The reason is that the court does not want to have to deal with the case, your case…any case frankly. The preference is that a solution is found.

My experience of now 40 years in the profession, is that if you get two litigation lawyers in a room they will find something to argue about. It is in their DNA. Honestly – it is in my DNA too.

But now, these days, when everything has gone (IMHO) a bit soft in the litigation of civil or commercial disputes, incorporating mediation into your legal strategy can offer benefits. In fact you must consider mediation or some other “ADR” option (ADR = Alternative Dispute Resolution).

I like mediation as it happens.

Cost-Effective and Time-Efficient

Legal disputes cost a fortune nowadays – financial cost and time cost.

Court proceedings drag on for months, if not years. Some of this is to do with the nature of the various “steps” being taken in the whole process and partly to do with what can only be described as the woeful crisis in the administration of civil justice.

The courts are universally slow in dealing with…well…anything. My local county court is turning around correspondence on a timeframe of 65 days….65 working days that is. Appalling.

Mediation is generally much quicker and less costly.

Mediators help parties find mutually agreeable solutions outside the court process, saving both time and money.

Preserving Relationships

Disputes arise even where there has been say a long-term commercial relationship. Often the parties will completely fall out over the dispute and never cross paths again but not always.

Commercial organisations spend a lot of time, effort and money cultivating relationships with partners and in large set-ups those relationships can be very diverse spanning departments or satellite businesses of the main corporation.

Any number of individual personnel can be involved in the various sectors of the business. Because of this, despite dispute, a commercial organisation may want to continue to do business with another. Resolving by mediation can allow the relationship to be preserved…even improved.

Flexibility and Control

Unlike court proceedings, where outcomes are dictated by a judge applying stated law, mediation allows parties to craft their own solutions.

Litigation is very emotive. Sometimes all a party needs is recognition, empathy, understanding and maybe apology – all achievable in a mediation….but mostly unlikely in a fiercely fought court battle.

You will wait years from the time you issue or receive a first notification of a claim to get a final hearing in front of a judge. Mediation can be arranged within weeks.

Confidentiality

Mediation is a private process. The discussions that take place in mediation are confidential. It is an entirely safe space for anger, concern, honesty to flourish.

Whatever is said in a mediation remains private. Most mediators will make few notes throughout the process and destroy any notes immediately afterwards.

The Churchill Decision

The Court of Appeal recently ruled that courts have the authority to suspend proceedings and order parties to engage in ADR, including mediation.

It seems that the courts are routinely making orders now and leaning on parties very heavily to engage in the process – it is not yet compulsory but soon it will be.

What’s not to like?

Getting legal advice is really important to appreciate and understand the weaknesses and strengths of your position in any dispute (and doing that before a formal claim kicks off is really smart!).

Getting a mediator involved early on will pay massive dividends and who knows it might actually stop the carnage of a court-based claim.

There is an expression: “suck it and see”. It means “give it a try”. Go on – I challenge you to do that.

How we can help

If you require help, we offer a no-cost, no-obligation 20-minute introductory call as a starting point and in some cases where appropriate, a fixed fee appointment.

Please email wewillhelp@jonathanlea.net providing us with any relevant information ensuring that any call we have is as productive as possible. After this call, we can then email you a scope of work, fee estimate, and confirmation of any other points or information mentioned on the call.

This article is intended for general information only, applies to the law at the time of publication, is not specific to the facts of your case and is not intended to be a replacement for legal advice. It is recommended that specific professional advice is sought before relying on any of the information given. © Jonathan Lea Limited.