Mediation is not a panacea, it doesn’t guarantee results, and there may be a better way to reach your client's objectives when dealing with a civil or commercial dispute. You might not be surprised to hear me say that as a litigator - but as a mediator? Well, yes, because one size doesn’t fit all and there other options. But choose carefully - and don't lose sight of the benefits of mediation…
Trials and tribulations
Civil litigation can be decisive but, as recent highly publicised cases demonstrate, it can also be a high stakes zero-sum game or a damaging lose-lose scenario.
For those with sufficient resources (time, money and fortitude), litigation may still be the right path: trials provide the most thorough process for sifting through documents, testing evidence and weighing up legal arguments. Sometimes there is little choice - you may be faced with an implacable opponent (and may have already tried ADR) or you may need a public declaration of the correct legal position (or perhaps reverse a patently erroneous court decision).
But litigation can be relentless, trials are public, courts aren't infallible, and the eventual outcome is never certain. Only hindsight will tell if it has been worth the cost. Even the best prepared case can be undermined by loss or destruction of documents, unavailable or unconvincing witnesses, unfavourable legal precedents, or simply ‘a bad day in court’. Proving a point or making a splash is never a good reason to litigate - it can too easily end in tears.
Even if litigation seems unavoidable, it is wise to consider whether there is an alternative approach which might enable more constructive voices to be heard, overcome an impasse or narrow the issues.
The courts expect parties to consider ADR. Mediation isn’t the only alternative to litigation but it is one of the best. Other options which can be useful include direct negotiation, arbitration and expert determination:
Direct negotiation is a tried and tested way of reaching a settlement in all manner of civil disputes, and is especially effective where liability and causation are pretty clear but quantum is in dispute;
Arbitration has the benefits and drawbacks of greater formality. Typically used in contract disputes and akin to a private trial, arbitration allows facts and issues to be pored over in detail with a binding award at the end - but this can be a costly and time-consuming process.
Expert determination is best suited to answering a discrete technical or legal question on which the parties disagree which may in turn unlock the road to a wider resolution of the dispute.
The role of mediation
Mediation offers a private, non-judgmental and uniquely flexible process to resolve simple or complex disputes. It can be undertaken as an alternative or in tandem with other approaches. The mediator will create a neutral space in which the parties can come together on a "without prejudice" basis, explore the issues and seek a pragmatic resolution on their own terms. It may not be a panacea but it is a very healthy step in the right direction.
This article is for general guidance only, it must not be relied on as legal or other professional advice. Anyone engaged in a civil dispute should obtain their own legal and other advice specific to their circumstances and the applicable law at the relevant time.
© Duncan Crine Mediation Limited 18.05.2022