The civil courts and the government are increasingly keen on parties trying mediation to resolve their disputes, both big and small, for the good reason that for many it brings a much quicker, easier and cheaper conclusion. Lavinia Shaw-Brown writes about the benefits and practicalities of mediation in legal aid cases
For those receiving civil legal aid, the mediator’s fees can be claimed as a disbursement under their full certificates and for those paying privately it can be more cost effective to mediate and avoid court costs.
Mediation can be arranged within a few weeks as long as the parties are willing to mediate. The length of the mediation depends on the type of dispute, number of parties and the amount in dispute, but it is very unusual for it to be more than one day.
Many mediation providers are able to assist with all the arrangements and host the mediation at their premises too, which has the advantage of offering the parties a neutral venue.
One of the major benefits of mediation is that a legally binding settlement agreement can be drawn up which includes practical provisions as well as financial payments and the latter can be detailed in a payment plan.
For many parties the confidential and without prejudice nature of mediation is a huge advantage and allows parties to fully explore possible outcomes and settle with a party knowing that the details of the settlement will not be disclosed.
Any perceived power imbalance can be minimised with the assistance of the mediator allowing parties a real chance to feel they have been heard and taken seriously. This is sometimes as important as bringing a long-running dispute to a conclusion.
Mediation is an essentially co-operative process rather than an adversarial one, which can prevent the worsening of relations between the parties if a continuing relationship is desirable or inevitable. It is also an empowering process by which parties can take back control of their situation and actively work out a solution that makes sense for them.
What happens at mediation?
Some papers are exchanged ahead of the mediation, but the mediator will not expect to be provided will all the correspondence and paperwork generated by the dispute. Usually a short position statement summarising the position is useful. It is important to note that the mediator is not a judge and will not be making decisions about the rights and wrongs of the dispute. Instead the mediator remains impartial and encourages all parties to move forward from their stated positions to find a resolution to the matter. Openness is encouraged.
It is a flexible process that can be adapted to the parties’ needs. Usually it begins with all the participants and the mediator having a joint meeting followed by each party moving to their private room. The mediator then ‘shuttles’ between the parties to help broker a solution between them.
Alternately, it is possible to accommodate individuals’ needs, including not meeting the other party at all if this is too difficult for them to do so. If, as a result of the dialogue, a settlement can be found, it can be written up at the end and, if signed, forms a legally binding contract between the parties.
Types of disputes
Some legal areas where we suggest that mediation should be seriously considered include debt, housing disputes concerning service charges, serious disrepair and evictions, discrimination in employment and education and harassment cases.
Harassment case study
Two parties, neither legally represented, were involved in civil proceedings. One party had applied for an injunction against the other. The judge had stayed proceedings in order for mediation to take place. The dispute affected other people, former mutual friends as well as family. On the day of the mediation neither party wished to meet with the other. The mediator was able to listen to the concerns expressed in each room and gradually tease out what reassurances each would need in order that an agreement could be reached which brought the legal proceedings to an end. Both parties experienced relief at having certainty that the dispute was over and that no further cost would be incurred by continuing in court.
Housing disrepair example
A claim for damages for breach of covenants of repair, both contractual and statutory, between an assured tenant and her housing association landlord. Every issue between the parties was contested and, although offers had been made, the parties were far apart. Clarification of each issue possible at mediation along with advice from legal advisers on the prospects of success led to renewed offers and eventual settlement to the satisfaction of both parties.