Why Mediate?
Judith Kelbie
Civil, Commercial and Workplace Mediator. Mediation Trainer. Fellow of the Civil Mediation Council. Fellow of the Chartered Institute of Arbitrators.
There are a number of reasons to mediate. The obvious are that it works, it is cost effective, creative, confidential and without prejudice and you stay in control. There are though other reasons to mediate and increasingly, sanctions are another good reason to do so. Trial is now seen as a last resort and parties are expected to try to resolve their dispute before going to trial. So, when invited to mediate by your opponent, the response should perhaps be "of course" or perhaps "we are open to mediation, however, we need x,y,z before we can sensibly do so", but never "NO!"
Sanctions have been imposed for unreasonable refusal to mediate, but what does that mean? The obvious reasons set out in the Halsey are well known to litigators. The PGFII case sent a shiver through many when the court imposed sweeping sanctions for a refusal to respond to an invitation to mediate. Clearly, doing nothing is no longer an option.
The recent Civil Justice Council paper summarises where we are now - short of mandatory mediation, but with a health warning that parties should try to settle their differences though negotiation, or ADR.
As a mediator I would agree wouldn't I? Well yes, but only because I see the disputes from both sides. As a mediator, I regularly see a reluctance to share crucial information that might otherwise unlock the dispute and lead to a settlement. I also see parties who have invested much both financially and emotionally, which makes settlement more difficult - but not impossible.
About 98% of my mediations settle on the day. A small number don't settle on the day, but settle shortly afterwards - mediation having caused the parties to take stock of their case and to consider the alternatives to settlement with the help of a skilled neutral.
Mediation offers early resolution of disputes, allowing for relationships to be preserved, or restored, and a mutually acceptable outcome for all. It is empowering and allows parties to acknowledge their differences whilst finding a route forwards.
Contact us for a without obligation discussion on 0207 583 0444.
Judith Kelbie - Independent Mediator - 01423 874599
Governor on the Board of Governors UHB NHS FT Vice President B’ham Medical Inst. Workplace, Civil + Commercial Mediator at BBMed/ClearSkies Mediation Past Senior Clinical Mentor BSol ICS Past Chair at the Lunar Society
6 年Mediation helps to change the approach to dispute resolution from the adversarial possibly punitive approach to the mutually beneficial rational and educational approach. Why spend more time and money on the former when the latter works just the same or better?
Partner & Head of Costs at Horwich Farrelly
6 年I agree entirely with you on this Judith, the fact the default response still seems to be “no” is very frustrating