A prevalent and popular form of alternative dispute resolution (ADR) is mediation.
This is due to mediation being comparatively low in cost compared to litigation, it is a confidential and voluntary process and has a neutral third party (the mediator), whose role is to assist the parties in dispute to reach a solution.
Mediation usually takes place over one day. This may be a couple of hours, a long day stretching into the night or anything in-between. The day begins with each party advancing their case to the mediator whilst the other party is present. The parties then occupy separate rooms and the mediator will go back and forth between the rooms, seeking where they can find agreement between the parties and attempt to persuade them to follow that path to a resolution.
The mediator cannot provide a settlement, but if the mediator is successful in their role, a settlement can be found by the end of the day. There is a degree of formality to certainly the preparty stage of the process, but on the day, the process is informal and flexible. The skilled mediator can be a positive force in helping the parties reach a binding settlement or at least, reduce the amount or girth of disputed matters.
Must a dispute go to mediation?
Following rules that were introduced in July 2023, if you have a small civil claim of less than £10,000, the short answer is yes you do. The ministry of justice is reviewing its commitment to integrate claims above the small claims limit of £10,000.
The Civil Procedure Rules (CPR) have been in place since 1998 and the subject of ADR has been ongoing since then. Due to the opinion of many that ADR is not being utilised fully, in November 2018, following two years of consultation and consideration, the Civil Justice Council ADR Working Group issued its final report making many recommendations. One of these surrounded the use of compulsion to make parties in a dispute mediate. Hence the small claim rule.
Another way for parties to be compelled to explore mediation is to include a clause for mediation within contractual documents. With the lack of mandatory mediation in larger civil claims, the courts will impose cost sanctions against parties who unreasonably refuse to partake in mediation or those that ‘drag their feet’ to delay in agreeing to mediate.
If the parties are willing to mediate, any civil dispute can be mediated. Mediation can be embarked upon before or after court proceedings have begun. If proceedings have begun, the parties may seek a stay of proceedings to accommodate the mediation process. The pre-action protocols encourage parties to use ADR. There is a movement towards mediation and other forms of ADR. If your company would like advice from a trusted and experienced advisor in civil dispute resolution, contact Mann Roberts Solicitors today. Mann Roberts – for when it matters.