To mediate or not to mediate…that is the question

Mark Pittaway

Ask anyone who has done it. Going to Court to resolve a dispute is an expensive, time consuming, adversarial and risky business. What is more, most of those asked about the experience will say that it is not a happy one, even if you ‘win’. Things are rarely as clear cut as they seem and the powers of the court are constrained in most cases so that going to court becomes an all or nothing situation.

Yet all too often, going to court is seen as the only way to resolve a dispute. At the first whiff of a dispute, we rush off to Court and are immediately locked into that adversarial process. Our opponent becomes our enemy and it becomes an expensive battle of wills because ‘ I must win at all costs’.

Those who are put off from trying to resolve matters altogether endure an unhappy time as the dispute festers and at best ruins what was probably previously a good working relationship.

Well the good news is that there is another way to resolve disputes, one that is not adversarial, is not constrained by it being either right or wrong and which does not cost the earth. Moreover it is a means of preserving relationships and potentially even cementing them. Sounds too good to be true but mediation really does work.

Mediation involves an independent third party – a mediator – helping both sides to come to an agreement by exploring with them the solution that they want. It is often done on neutral territory and many times without direct face to face confrontation. It is aimed at ascertaining the interests of the parties rather than concentrating, as the court concentrates, on the issue itself.

Take the case of two children squabbling over an orange. A parent will intervene by cutting the orange in half. The orange is the issue and the parent has resolved the issue by dividing it equally. But what if the one child wanted the zest to make a cake and the other wanted the juice for a drink? Their interests in the orange were very different and a trained mediator would have ascertained that fact early on. In that way, by addressing their interests rather than the issue, a mediator would have satisfied the interests of both children.

Mediation is a flexible process and can be used to settle disputes in a whole range of situations such as:-

  • consumer/commercial contract disputes
  • boundary and other property disputes
  • workplace disagreements

The role of the mediator is to help parties reach a solution to their problem and to arrive at an outcome that both are willing to accept. It will nearly always involve compromise in the true sense of that word.

Recent guidance from the courts makes it clear that the courts will expect disputing parties to explore the possibility of mediation or else risk being heavily penalized in costs. The seminal case is Dunnett v Railtrack and although that court of appeal case is now 14 years old, it remains good law today. There, Mrs Dunnett had lost a number of her horses in an accident on the railway line. She was incensed at the attitude of Railtrack and issued court action. Railtrack did not think much of her claim and refused to mediate. At trial, Railtrack won but Mrs Dunnett appealed. Although her appeal also failed, she nevertheless gained a significant financial victory because the court refused to allow Railtrack to recover from her the legal costs it had incurred.

Lord Justice Brooke made clear his views on the nature of mediation and the role of mediators. He said that skilled mediators could achieve results satisfactory to both parties in many cases which were quite beyond the power of lawyers and courts to achieve. There were cases where, as in this case, intense feelings had arisen, for instance in relation to clinical negligence claims. Even so, when the parties were brought together on neutral soil with a skilled mediator to help them resolve their differences, the mediator may be able to achieve a result by which the parties could shake hands at the end and feel that they have gone away having settled the dispute on terms with which they were happy to live.

He was clearly mindful that a mediator may be able to provide solutions which are beyond the powers of the court to provide. The power of an apology should never be overlooked and indeed this was a very significant feature in Dunnett. It is not something which a judge can order or enforce but it is something which can easily be included in a mediation settlement agreement, the terms of which can, if necessary, usually be enforced.

Mediation is here to stay whether lawyers like it or not and we are proud to have the services of an accredited mediator in our team. If you have a dispute that you are struggling to resolve or know of someone in that situation or would simply like to know more, contact our expert, Mark Pittaway.

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