Why should I bother mediating in a Civil Dispute?

This was a conversation I had with my client a few months ago. “We’re so far apart, what’s the point? They’re never going to settle”.

After 2 years of fairly acrimonious litigation, mud slinging and accusations being flown around I could totally understand why my client thought that mediation might be a waste of time. We also had the problem of the other party thinking there was a much bigger claim than there actually was and their legal team incurring an eye watering amount of costs (our barrister referred to their costs budget as looking like telephone numbers!). All of this made the client concerned that going to mediation was unlikely to be successful and therefore the costs of the process would be a waste of time and more costs. So why did I encourage them to go through it?

Judges don’t see mediation as a waste of time

Our Judge at the Case Management Conference told both parties in no uncertain terms that this was a case which should settle and should not go to trial. The overall sums being argued about were ultimately not that high and the legal issues were not that complicated. As such, despite what each party thought, the case was rife for mediation.

Since the changes to the Civil Procedure Rules, Courts have more powers to impose mediation or other forms of alternative dispute resolution. Previously Judges would encourage, but now they can say that parties must do it. As such, even if your client doesn’t see the benefit, if they chose to refuse, then there could be costs consequences to the client which could ultimately cost more than the costs of the mediation day.

You can end up with something you won’t get at trial

I have personally dealt with a number of cases where the client wants something which a trial Judge won’t have the power to give them. In my recent case, my client wanted an apology. Accusations had been made in the claim which where personally damaging to his professional reputation. They were completely false and we could prove that, but the fact that they had been made, was damaging itself.

At the mediation, as part of the offers made, and ultimately the deal which was done, was a letter from the other party confirming that the allegations had been clarified to their satisfaction and there was no evidence of any wrongdoing. This was huge deal to our client and meant he could go on with his businesses knowing that if anyone became aware of the claim, he would have this to show them.

Another mediation in a contested probate matter settled with a resolution about how personal effects would be dealt with. The family members had been dealing with the issues of the case for so long they hadn’t actually had a chance to speak about what would happen with the deceased’s jewellery. The venue of the mediation was a perfect time to discuss these outstanding matters.

It’s a chance to understand the other side

Quite often you get to mediation at the point where lengthy legal correspondence has been exchanged for months or even years. Sometimes what gets lost in that correspondence is what the other party is actually looking for from the claim. A mediation is a chance to understand where the other side actually stands and what their priorities are. Sometimes they can surprise you. The mediator becomes the speaker for the other party and can present what they have heard in the other room and cut through some of the legal jargon. This assists us as the legal team, plus our clients, to understand what is needed to resolve the matter.

Conclusion

I haven’t had a mediation which has been a waste of time yet. I have lost count of how many I have been involved in and the vast majority have resolved the dispute. The one which didn’t, led to a resolution a few weeks later. The settlement wouldn’t have happened without the mediation day and the input from the independent mediator. As part of those mediations we have been able to settle the dispute and also some of the other ancillary matters for clients, whether that’s repairing relationships or an apology.

At Pearson Hards we have a number of mediators who have a range of expertise so we will be able to find one to suit the needs of the client and the dispute.

If you want to speak to us about mediation then you can contact Claire Darby (cdarby@pearsonhards.co.uk) or Isaac Leigh-Howarth (ileighhowarth@pearsonhards.co.uk) on 0208 949 9500 or by email.