What is Mediation and how can it help?
Mediation is a common form of Alternative Dispute Resolution (ADR).
The process sees a neutral, independent third party appointed to facilitate discussions in a commercial dispute. By talking to each party they try to find an agreed upon solution.
What happens during the mediation process?
The exact process varies depending on the individual circumstances.
Generally, the parties involved will exchange case summaries and supporting documents with each other, sending copies to the mediator too. Discussions can then begin.
A joint meeting will be held with the mediator and representatives from both parties. Itís important the representatives of each party have the authority to agree a settlement.
The mediator will lay out the ground rules and each party will make an introduction to outline their key issues.
After the initial meeting the mediator will hold private meetings with each party. All discussions are confidential and give each party the chance to explain their side of the story.
How is an agreement made?
There may be several private meetings. The exact number depends on the merits and complexities of each case. The mediator will try to get the parties to compromise and come to a solution.
Rather than simply focus on legal rights, the mediator will encourage the parties to think about their commercial interests.
If a solution is found, an agreement will be drawn up. Both parties must sign the agreement, making it a legally binding document.
What happens if an agreement canít be made?
There is a possibility an agreement is not reached, or the negotiations might only be partially successful.
The parties could choose to take the issues to arbitration or litigation. They will then be bound by a decision made by the arbitrator or judge.
What are the advantages of mediation?
As with all forms of ADR, it can be a quicker and more cost effective way of reaching a settlement than going to court.
The parties also have more freedom and flexibility in terms of what solution they come to as they do not have to hand control over to a judge or arbitrator.
The process is also completely confidential. The dispute can be kept out of the media and will not be disclosed to competitors.
Are there any disadvantages?
As the case could end up in court if an agreement canít be reached, an ultimate solution can take longer and be more expensive.
However, if the case does ultimately go to court it might be easier for the judge to come to a decision. All the main issues should have been clarified and discussed during the mediation process.
You should also be cautious if there is a limited time period within which action must be taken. Such a time limit canít be extended during any ADR process so you could run out of time for issuing a claim.
Do I need a solicitor?
While a solicitor is not necessarily required for mediation, if the issues are complex or emotive you may benefit from having a legal professional advising you through the process.
A solicitor will also be able to help you choose a suitable mediator who has experience of your industry and/or the appropriate technical knowledge.
Let us help
To talk about mediation, ADR and other ways of resolving commercial disputes, please contact Daniel Zakis or Alison Willis on 0121 705 7571.
Or email firstname.lastname@example.org or email@example.com
Alternative Dispute Resolution (ADR) (Dispute Resolution)
How arbitration can help (Dispute Resolution)
Resolving commercial disputes (Dispute Resolution)
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