Nigel Martin trained as a Mediator at Harvard Law School in 2014 and has successfully mediated Disputes adopting the Model of Understanding. This is the second in his series of Guest blogs which looks at alternatives to Court proceedings.
In his last blog, Nigel looked at the processes of mediation; here he explores the benefits of mediation.
When considering Mediation as an alternative to Court proceedings the key benefits to bear in mind are as follows:-
1. Mediation saves time.
Mediation can be arranged in a matter of days or weeks. A Court hearing requires proceedings to be drafted, issued, responded to, documents to be disclosed, Expert Opinions sought, Review Hearings, Direction Hearings and obtaining a date for a Final Hearing can take many months or longer in high conflict or complex cases.
2. Mediation is forward-looking and positive.
The Court Proceedings focus on past events, conceptualising those events in terms of legal Rights or Wrongs. The Court’s remedies are relatively limited and take little account of the parties’ present or future interests. Mediation focuses on the future and how to get there. Mediation can capture value which may not ever be considered by the Court.
3. Mediation is entirely voluntary.
A party can choose to remain or withdraw from mediation at any time. By contrast, a Party to formal Court Proceedings is compelled to engage in a competitive and oppositional battle or risk a very adverse finding being made against that party.
4. Mediation is empowering and the parties control the process.
The parties together, can dictate the timetable for mediation and the speed of progress. They craft and control the outcome. Mediation can therefore happen much more quickly than waiting for a Court date. The parties can together, chose the time, date and place of the mediation to accommodate their respective timetables and ensure privacy. The Parties have complete control over costs.
5. Mediation is private and confidential.
What is said or not said during the mediation process is completely private and confidential. Strict confidentiality is provided for in the legally binding and enforceable Agreement to Mediate.
6. Mediation can preserve relationships.
The Court process requires the parties and their respective lawyers to compete against each other and the process is largely oppositional. Most of the time, effort and costs are devoted to simply resisting the forensic “push and pull” of the Opponent. Over time, that competition, is highly corrosive of any pre-existing relationship whether it be Contractor and sub-contractor, Manufacturer and Distributor, Wholesaler and Retailer, a professional or personal Partnership or a family relationship.
The process of mediation, facilitated by an expert neutral person, will not harm that underlying relationship and will in most cases preserve or enhance it. By contrast, Court Proceedings usually award one party a “Victory” and require the other party to suffer a “Defeat”. This dynamic alone is most unlikely to foster good relationships. In Mediation, where the parties can model agreement and gain a better understanding of each other, their relationship can be enhanced even if the dispute cannot ultimately be resolved through mediation.