Mediate or litigate?
I am a keen hillwalker and wanted to combine one of my passions with my mediation activities in an image which captures both activities.
This image captures neatly the choices individuals and employers face when dealing with e.g. a workplace dispute. Either route up the mountain is challenging, but only one leads to a mutually agreed, confidential solution at minimal cost.
Wouldn't It Be Easier to Talk?
Sometimes it is easier to talk to resolve a disagreement or dispute. On most occasions however we struggle to have difficult discussions before disputes then spin out of control.
Mediation allows a way of encouraging discussion and resolution.
Mediation is an invaluable process which helps those in a dispute mutually resolve their disagreements and get on with their lives, professional or personal. The sense of relief experienced by those at the end of a mediation is almost always palpable.
It is carried out in a manner which is simple, flexible, commercial and confidential.
Mediation is swift, cost effective and typically does less damage to the relationship. A typical mediation will take no more than one day and often less.
It is a great alternative to litigation and may also result in a legally-binding agreement between those involved in the dispute.
Mediation is increasingly used in a number of sectors of the economy, different parts of our lives and indeed in a wide range of countries.
Having been involved in litigation for most of my working life, I am a convert to mediation which typically has a success rate of 70-75%. It is, quite simply, a no-brainer.
the benefits of Mediation
Mediation is increasingly used to resolve disputes and is attractive for a number of reasons:
- It is confidential and any final agreement, which can be legally binding, will reinforce the confidentiality of mediation discussions and the terms of the agreement
- Those involved do not have to worry about publicity
- It is "without prejudice" and thus all possible solutions can be explored before an agreement is signed
- Those involved retain control of the mediation and the agreement rather than passing it to somebody else e.g. a Tribunal or an Arbitrator. As a result, the mediation is less formal
- Those involved can be supported by existing legal advisors
- It is a cost-effective means of resolving a dispute with a typical mediation taking no more than one day
- Even if mediation is not successful, the discussions often lead to a resolution at a later date, again without further litigation
- Mediation can identify solutions which are not evident during the early stages of a dispute or subsequent litigation e.g. the provision of a reference or an apology
- Courts increasingly expect claimants to have mediated before litigating and will expect the mediation effort to be a serious one
- Litigation is not only time consuming and costly, it is also distracting and worrying over many months for those involved