Mediation – is the message getting through?

20th December 2016 | Written by Alistair Rustemeyer

alistair-rustemeyer

Alistair Rustemeyer, an accredited mediator with CEDR since 1999 examines the role mediation plays in the civil litigation arena.

“Mediation is an effective way of resolving disputes without the need to go to court.” – Civil Mediation Council

Surprising then that the key findings of the Civil Justice Statistics Quarterly, England and Wales July to September 2016 found that for county court civil (non-family) cases the court dealt with 494,000 claims an increase of 24% from the same quarter in the previous year. This increase was driven by the County Court Business Centre (CCBC) having an increase of 43% more claims against the same quarter than last year. Clearly, the message isn’t getting through.

In family disputes, since April 2011, there has been a requirement that anyone wanting to go to court should first attend a Mediation Information & Assessment Meeting (MIAM) with a suitably qualified mediator to find out about mediation and other non-court options. This reflects a smaller increase of cases started in the family court of just 10% from April to June from the same quarter in 2015.

So far, civil courts have shied away from making such a move despite the less than subtle attacks on the profession from Lord Jackson. Today mediation should be as common place in a litigator’s arsenal as any other tool. Indeed it is hard to find a ‘litigator’ these days we have all morphed in to ‘dispute resolution lawyers’ yet the statistics would suggest less resolution more litigation.

So what is mediation and why the apparent slow uptake? Simply put, mediation is a meeting between the parties overseen by a neutral Chair known as a Mediator. The mediator is trained to assist the parties reach an agreement between themselves absent of judicial interference and the usual sometimes disproportionate costs that are often associated with litigation. The advantage of mediation is that the parties get to decide the terms of their settlement. It is not left to the whim of the Judge. If the parties agree their own settlement there is less resentment of the process, a better chance of both parties sticking to it and an increased likelihood of commercial relationships being maintained, all at a fraction of the cost. Also, mediations can be put in place very quickly, sometimes within days. If a problem exists which is better: nip it in the bud early and move on, or let the problem become more than it should, poison the relationship, cost thousands of pounds to resolve and then only after a year or two wrangling through the courts? The winners – The Lawyers.

The message is a simple one. If you are in dispute or perhaps more importantly you see a dispute coming your way head it off early. Mediation can sit along side any court action or be completely independent of it. The process if entirely confidential. Nothing is binding until a Mediation Settlement Agreement is signed and then should you need to enforce any breach the Agreement has the same force and effect as if it were an Order of the Court.

Prevention is very much better than cure.

For a free discussion on how mediation can work for you please contact Alistair Rustemeyer, Associate Solicitor in our Dispute Resolution from our Brighton & Hove office e-mail: AlistairRustemeyer@rixandkay.co.uk or telephone: 01273 766938.