Charlotte Steinfeld who is Head of 10KBW Mediation Group from 10 King’s Bench Walk barristers chamber shares her thoughts on why you should try mediation when a dispute emerges. Charlotte is both a barrister and a mediator, so she has seen numerous matters from both sides. More and more, parties are choosing to mediate alongside taking their cases to court, and there are 5 very good reasons for doing so.
What is mediation?
Mediation is the most popular form of alternative dispute resolution (ADR) in England and Wales, largely because it can run parallel to litigation. Parties can choose to mediate at any stage of their legal proceedings and are often strongly encouraged to do so by the judge in their particular case. If they don’t settle, they can still proceed to court. The parties themselves, with the trusted advice of their legal advisers, take control in mediation.
They choose:
– who the mediator will be
– what information will be exchanged with the other side
– what types of offers will be made and when, and if they will come to a deal with the other party.
The vast majority of parties successfully settle their case at mediation, and on their own specific terms. However, even if they do not settle, parties often find the negotiations have been extremely beneficial to their court case as a whole. Mediation works in all types of civil and commercial disputes. It is especially effective in cases where the parties have an ongoing personal or commercial relationship, for example in inheritance, contract, and neighbour disputes.
What happens at mediation?
During mediation, a series of confidential negotiation discussions take place through a skilled, independent third party: the mediator. You are usually in a different room from the person/s with whom you are in dispute.
You, alongside your lawyers, will work through your chosen mediator to:
Request and exchange information with the other party – on the facts, law, evidence and personal and/or commercial interests underlying the dispute, and engage in negotiating a settlement of the dispute on your own terms.
Your lawyer, usually a barrister known as a “mediation advocate”, will accompany you to the mediation with a robust negotiation strategy in place to help you secure what you want and need out of the negotiation.
You can choose to stay or walk away at any time. If you walk away, the litigation usually continues as it was prior to the mediation. If you settle, your lawyers can end the litigation via a consent order called a “Tomlin Order”. Ordinarily, your agreement is enforceable in court.
There are many benefits to mediating a dispute even if it does not settle at mediation. Here are five:
- You can obtain information about the other side’s case that you simply would not have obtained in any other way. It may be a lot weaker or a lot stronger than you and/or your lawyers had considered.
- You can make or seek offers which include non-monetary items that a judge cannot order, such as requesting an apology or a promise that certain changes be made in future business practices. Any offers that are not accepted can be completely retracted and they will not be communicated to the judge if you proceed to court.
- You engage in a completely confidential process, where all parties sign an agreement to this effect. You can explore the case and make offers of your choice with the full assurance that no person outside of the mediation can know what was discussed at mediation. Mediation is also without prejudice, which means what is discussed at mediation is confidential from the judge in your case if the matter continues to court.
- Offering to mediate protects you. If you offer mediation and the other side “unreasonably refuses”, even if they later win in court, the judge can order them to pay some of your costs. Vice versa, if you unreasonably refuse to mediate, yet later win your case, the judge can order you to pay some of the other side’s costs. It therefore makes sense to try mediation; there is little to lose.
- If you settle, not only will you have an agreement which will end the dispute in the way you want, but you will also likely have saved thousands, if not tens of thousands, of pounds litigating your case in court.
There are very good reasons to try mediation for your dispute. Ask Nicholls Law more about how they can help you to mediate your case whilst protecting your position in litigation.
Charlotte Steinfeld
Charlotte Steinfeld is a barrister and CEDR accredited commercial mediator based at 10 King’s Bench Walk Chambers, where she is also head of the 10KBW Mediation Group. Charlotte has attended the world-renowned Harvard Law School Program on Negotiation and uses the Harvard framework of principled negotiation at mediation.
*Notice: This blog does not constitute legal advice*