A Win / Win Scenario?

The Litigation landscape is continually evolving and changing. The Costs involved in taking a business dispute to Court are invariably substantial and often outweigh the amounts at stake. A well overdue review of Civil Litigation Costs took place in 2009 culminating in the findings and recommendations published in the report of Lord Justice Jackson during December 2009.

The Jackson report concluded, amongst other things that: “there should be a serious campaign to....... (b) alert the public and businesses to the benefits of Alternative Dispute Resolution (‘ADR’).”

Alternative Dispute Resolution

ADR includes the use of Mediation, a process whereby a third party, the Mediator, assists in bringing the Parties to a dispute to the stage where they are able to reach a prompt and cost- effective settlement.

Consider, for example, the dispute your business has regarding an unpaid invoice. You firmly believe that the reasons advanced for non-payment completely lack merit. Principle dictates you should press on immediately with Court action. Why mediate? What advantages are there over “traditional” Litigation for my business?

Advantages of Mediation

1. Cheaper Costs - Mediation is often a half or one day process, which costs much less than preparing for and attending a Trial. Given the current economic climate and, the ever pressing need to preserve cash-flow there are sound financial reasons to use other less costly methods of resolving a dispute;

2. Quicker - the process of Litigation can endure for a number of years;

3. Flexibility – the Court has limited powers that would result in a ‘black or white’ solution. Through Mediation the Parties can reach a unique, bespoke and mutually acceptable solution;

4. Certainty – even with a strong case there is the inherent uncertainty of Litigation, whereas a binding settlement agreement is certain;

5. Emphasis on interests rather than rights – Litigation is about the enforcement of ‘rights’. Mediation looks at the ‘interests’ of the parties. A process focusing on ‘interests’ can achieve the preservation and continuation of a commercial relationship where the parties’ differences may not actually be that divergent. The preservation of a mutually beneficial, long term relationship is especially relevant, for example in the context of Landlord and Tenant. Once Proceedings have been issued and concluded the relationship of Landlord and Tenant can be lost for good to the detriment of both parties.

Is Mediation a ‘soft option?’ Litigation is seen as a robust option, perceived to send out a message of strength in the market place. Such view has long since been challenged. Common misconceptions of the Mediation process can be easily dispelled

‘I have a winning case’ – there is no logical reason why this should discourage Mediation. The strength of your case will be a prominent factor in encouraging a good settlement in your favour at the Mediation.

‘Mediation is a sign of weakness’ – no case would ever settle if Parties did not show initially a willingness to negotiate. Mediation is a neutral process and agreeing to mediate can be couched in such a way as to avoid implications of weakness or a lack of confidence.

‘We are too far apart’ – the skill of a Mediator is to challenge entrenched views, misconceptions, and to highlight the very real risks of Litigation. There may not be much legal “common ground” but the parties to a dispute will undoubtedly be able to identify some critical issues on which they do in fact agree. Most commercial Mediators report a success rate of 90%. The results of Mediation can never be guaranteed of course but, such a statistic speaks volumes for the inherent benefits of Mediation.

We at Oliver & Co are fortunate to have in place a qualified and experienced Commercial Mediator, John Colvin. John is accredited by ADR Net. He offers a fixed fee Mediation service covering the full range of Commercial Disputes from consumer/ supplier disputes through to complex shareholder disputes. By way of independent endorsement of his abilities as a Mediator one fellow Practitioner wrote:-

‘Acting as a Mediator in a difficult three party case, John Colvin approached the dispute with a clear strategy in mind, and worked very hard to secure a settlement when it seemed none was possible. I would have no hesitation in recommending his future instruction as a Mediator’.

John Colvin can be contacted on 01244 354 678 to arrange a Mediation at your earliest convenience.

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