Insight
When people are in disagreement, sometimes the only way they think they can resolve things is through court proceedings. However, is that always the best option or are there alternative means of dispute resolution?
Mediation is a form of dispute resolution which has been around for many years. In short, it is an option for the opposing parties to “get round the table” and attempt to resolve their dispute using a “go-between”, the mediator.
The mediator is an independent third party. Mediators typically have specialist accreditations and skills that allow them to facilitate cooperation and bring together often contrasting views. They attempt to bring all parties together to find a workable resolution for everyone involved.
Also, the mediation process is confidential and parties will assert that information disclosed at mediation cannot be disclosed in any court proceedings. This allows for pre-action mediation to take place freely and openly.
The flexible and collaborative nature of mediation means that it can provide for a compromise between parties. It can seek to bring a more amicable resolution, allowing parties to continue their personal or commercial relationship with less animosity.
Is there a place for compulsory mediation in dispute resolution?
Parties to a contract can elect to include a compulsory mediation clause, requiring mediation to be attempted before either party raises a court action. Currently in Scotland, however, there is no requirement to mediate or enter into any form of alternative dispute resolution before commencing a court action.
If mediation successfully leads to settlement terms being achieved, they are the product of a controlled settlement process. The mediator’s role going between the parties should have brought everyone involved closer to a middle ground. This will hopefully mean parties feel they have reached a positive resolution.
Mediation can be very cost-effective if pursued at the beginning stages of a dispute. It can be a relatively cheap process as many mediations only last one day.
The argument for compulsory mediation may be hindered by the fact that, in order for mediation to be effective, all parties have to be open to compromise. If parties are so entrenched in their position and unwilling to enter into productive discussion, then it is most likely that mediation will fail.
Mediation in itself is not a cost-free alternative. Parties will have to agree who pays the costs of the mediator. If mediation is made a compulsory step in the court process, then it could result in dissatisfied parties who feel time, and money, has been wasted.
Overall…
Parties should consider whether pursuing mediation could be in their best interests, the door to mediate does not close once the court action is underway. Weighed against the cost of litigation, mediation costs are likely to be lesser in comparison. Furthermore, with the current backlog in the court system in Scotland, it may lead to matters being resolved more swiftly.
Mediation is not a miracle cure for every dispute. There is always the risk mediation can fail and a court action is necessary. However, many disputes, whether commercial or personal, can be resolved through constructive conversation and a flexible response that mediation can offer.