Many people may believe that going to Court is their only option to resolve a dispute. Court proceedings can often be not only expensive but also stressful and antagonistic.
Thankfully, there are in fact other alternatives to Court proceedings – one of which is the process of mediation.
Nigel Martin trained as a Mediator at Harvard Law School. In his first of a series of guest blogs for Life Law NI, Nigel provides us with some practical information on mediation
Many people who are involved in a dispute are concerned about the uncertainty of the outcome of formal Court proceedings. They are naturally worried about the open-ended costs of going to Court. They would also like to have more control over the resolution of the dispute and the time-frame for resolution.
Those of you who share those concerns will be pleased to learn that there are some alternatives to Court proceedings, sometimes referred to as “Alternative Dispute Resolution” or abbreviated to “ADR”. There are two principal alternatives to formal Court Proceedings, namely Mediation and Arbitration.
The key difference between Mediation and Arbitration is straightforward. With Mediation, a Mediator is appointed to facilitate a process in which the parties try to reach an agreement between them to resolve their dispute. With Arbitration, the parties agree to appoint an Arbitrator to actually determine the dispute for them and they agree to be legally bound by that determination.
In this first part of my guest blog for Life Law NI, I would like to concentrate on looking at the area of mediation. I will look at what mediation is and how it works.
What is mediation?
Mediation is a voluntary process in which an expert neutral, (the Mediator) allows each party a full and fair opportunity to express what is really important to them – not just what might be regarded by lawyers as “relevant” under the strict rules of evidence. Each party has the opportunity to hear the other party and, most importantly, to be heard themselves. The parties and the Mediator can examine the parties’ real interests and look creatively at all the options for resolution by way of agreement.
How does mediation work in practice?
The parties can approach and appoint a Mediator directly, however most parties instruct a solicitor both for legal advice and to retain the Mediator on their behalf.
The parties are free to retain their solicitor to appear or advise them during or in tandem with the mediation. Sometimes where mediation takes place at an advanced stage of Court proceedings and the parties have already retained legal representatives, those legal representatives can attend the mediation and provide an analysis of the legal issues. However, it is important to stress that mediation is very different from Court proceedings and requires the direct engagement of the parties rather than their respective lawyers.
Typically, the Mediator will ask the parties to sign an ‘Agreement to Mediate’. This protects confidentiality and usually preserves each parties’ formal legal position pending the outcome of mediation. The parties then agree a time and place for mediation and provide the Mediator with any relevant documents in advance. The mediation takes place in private at a venue chosen by the parties. The parties control the timetable for mediation – it can take place over a series of short sessions or on an ongoing basis on consecutive days in more complex disputes.
What happens at mediation?
There are two primary models for mediation:
- The Caucus Model – this sees each party occupy a separate room for most of the time with the Mediator shuttling between the rooms trying to “negotiate” a settlement.
- The Model of Understanding – this is a model developed and taught by the Harvard Negotiation Institute at Harvard Law School in the USA. In this model, parties spend most of the time in joint session together with the Mediator. Working together in one room can increase mutual understanding and help model an agreement.
In each model, where the parties reach a consensus, the Mediator will assist them in either drawing up a simple agreement which will be legally binding and enforceable. If it is a complex matter, the Mediator will instead assist the parties in drawing up Heads of Agreement which their respective lawyers can flesh out with detail.
In either case, the goal is to have an agreement in writing signed by both parties which will be legally enforceable and binding of itself without the need for a Court Order. If Court proceedings are already underway, the agreement reached can thereafter be made an Order to conclude the proceedings.
Why choose mediation before litigation?
Court Proceedings rarely provide a real resolution of the underlying dispute or the emotions that drive it. The Court must determine a legal claim within the strict legal framework and based on strictly admissible evidence. What you feel or what you regard as most important may never be heard by the Court or may have absolutely no relevance to the legal criteria.
The process of litigation is intensely competitive and highly oppositional, a bit like a Tug of War. Litigation demands your time, focus, energy and increasing financial resources. It is a process controlled by the Court and not the parties. The determination of a legal claim at first instance does not guarantee an end to the dispute as typically each party will have an automatic right to appeal to the next tier of the Court.
More information can be found on mediation, arbitration and litigation at www.nigelmartin.co.uk.