What does mediation offer?

tl_files/2016/Mediate to Resolve new.jpgFlexibility:

Mediation offers a great degree of flexibility allowing for a remedy to be agreed between the parties, such as apologies, amendments to contracts and payments of money in instalments and grant of licenses. In contrast, a judge is constrained in the remedies he can award.

Selection of Neutral:

The parties can select their mediator, who can be trusted and respected by both parties and is an expert in his field.

Cost and time:

Mediation is considerably less expensive than litigation and occupies less management time. A mediator can bring value to the process, giving the parties the best opportunity to have a constructive discussion at an early stage, before legal costs escalate and become a stumbling block.

Nothing to lose:

By entering into mediation, neither party loses their right to pursue other dispute resolution methods such as litigation. It can take place at any time, including during litigation. The mediation takes place in a confidential environment, unlike litigation, which is open to public scrutiny, and is ‘without prejudice’ which means that the information disclosed during mediation cannot subsequently be used in court. The settlement reached by the parties sets no precedent so is ideal if a party wants to treat the dispute as a one-off.

Maintains relationships:

Litigation by its very nature is adversarial and often irreparably damages relationships, whereas mediation encourages communication and co-operation between the parties and can often preserve relationships and generate future business.

Court expects mediation:

Recent cases have shown that the Court may deny winners at trial their costs and expenses if they have unreasonably refused to mediate.

When is Mediation Appropriate? Mediation is appropriate in any dispute situation!

Lawyers and their clients are sometimes reluctant to engage in mediation, specially when they consider they are in the right! Parties should always identify what their objective is before embarking on litigation. Mediation is one strategy to achieve this objective. Even if a party is successful, a Court is limited in the remedies it can award. In mediation, the parties have complete freedom and control over the outcome and the settlement terms. Mediation is considerably less expensive than litigation and occupies less management time. Mediation should be considered as part of the litigation strategy early on, before the parties have become too entrenched in their positions or incurred legal costs, which could be a barrier to settlement.

How does a mediator help?

Very often the mediator can help with negotiations that would otherwise breakdown if the parties were to try to resolve issues between themselves. The mediator can also help break down barriers to a successful settlement by helping the parties think through the risks of litigation and to honestly address the question of what would happen if they did not.