With the recent news that fast track and multitrack court cases are taking on average some 18 months from issue to trial (and the south east being one of the worst performing regions), it is high time to get busy with alternatives to resolve civil and commercial disputes.
Mediation is often casually bundled together with other forms of (A)DR but this approach risks overlooking fundamental differences between mediation and many of its well-publicised alternatives, including the extent of the parties' control over the outcome.
Non-mediated (A)DR options: the third party as decision-maker
Most non-mediated (A)DR options (adjudication, arbitration, early neutral evaluation and binding expert opinion) have a quasi-judicial flavour: a third party decision-maker is brought in to consider the facts, assess the law, and ultimately pronounce on the rights and wrongs.
They may differ greatly in terms of procedure, time, cost and complexity – ranging from a summary process to something akin to a fully contested trial – but the third party’s decisions on fact and law (whether formally binding or not) are likely to drive the ultimate outcome: once you have asked for a definitive answer, it is hard to depart from that.
Sometimes that is exactly what the parties want (or need) but in many cases they just need an outcome they can live with. Like court decisions, third party awards tend to create winners and losers, which is fine for the winner but not the loser - and, as all experienced litigators know, things don’t always turn out as expected.
Mediation: the third party as facilitator and evaluator
In mediation, the outcome lies firmly in the hands of the parties. They don’t need to define the issues in binary terms. They don’t need to agree about disputed facts, or “win” on the legal merits. They simply need to be willing to try to reach a mutually acceptable solution.
The mediator is there as a trusted neutral, but not a quasi-tribunal, and plays a key role in bringing the parties together, promoting constructive discussions and maintaining momentum towards a resolution.
In a plenary session under the auspices of a skilled mediator, the parties can speak directly and frankly, get their points across, hear their opponent’s perspective, acknowledge difficulties and build bridges.
In the private sessions which are such a distinctive feature of mediation, the mediator can be a critical friend to the parties – exploring, testing and challenging their positions and assumptions, helping them to consider and understand their opponent's position, and helping them to identify blockers and routes towards to settlement.
Much of this is hard, if not impossible, to achieve in other forms of dispute resolution.
Getting to a deal
In this way, mediation creates a space for the parties (assisted by their legal representatives) to look beyond their ‘rights-based’ legal positions and find their own ‘interest-based’ solutions, even ones which go outside the strict confines of the legal dispute.
So this is what makes mediation a uniquely valuable alternative to court-based litigation: the parties are fully engaged and empowered throughout, and they – rather than a third party decision-maker – get to choose whether and on what terms they resolve the dispute.
Further information
If you would like further information, details of my background and experience can be found here and further articles here.
If you would like to discuss a potential mediator appointment, please email or call.
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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 02.06.2023