Solicitors are better informed about the advantages of mediation now than in times past. Nevertheless, there still appears some resistance to embarking on mediation prior to the commencement of proceedings.
‘Stay to mediate’ orders
To address this, the Bristol courts are pioneering a transformative approach using 'Stay to Mediate' orders. In a world where litigation might seem like the only path, a 'Stay to Mediate' order highlights the fact that a judge considers the case suitable for mediation.
Under this initiative, parties embarking on legal proceedings are encouraged to pause, reflect, and explore mediation. Court proceedings are suspended for three months, providing a valuable window for dialogue, understanding, and resolution.
Why are lawyers reluctant to use mediation?
Recent research suggested that there are a number of factors
· The perceived cost of mediation
· Some thought their clients might not be interested
· Some felt they didn’t have enough information about mediation
· Some still felt that suggesting mediation might be taken to be a sign of weakness
Additional factors mentioned included a suggestion that mediators were an unnecessary cost and that lawyers should be more than capable of resolving the disputes themselves – though issuing proceedings may indicate that even if lawyer to lawyer negotiations have taken place they have clearly failed.
Others suggest that since they have a strong case, mediation is unlikely to deliver what the client is entitled to expect if they proceed to trial.
So, are these concerns justified?
Perceived costs
Certainly, the involvement of a mediator will incur costs. If the parties are represented, they will incur lawyer costs as well, both in preparation for the mediation and on the day itself.
A better question is this: is it a worthwhile investment of time, effort and cost to try resolve a dispute quickly rather than incurring the inevitable costs and risks of going to court? In addition to the speed of outcome (a mediation can be set up and completed within a matter of days), it often gives the parties an opportunity to get a result which will more flexibly meet their interests and needs than the remedies available through the court.
Client may not be interested; not enough information
These comments are surprising. How can a lawyer fulfil their obligations to their client regarding the litigation without explaining the way that mediation works.
If required, further information regarding mediation generally and the Bristol court mediation initiative is available here.
A sign of weakness? Perceptions of a strong case
There is a general perception that if the client has a strong case mediation is unlikely to deliver the outcome they are seeking; the compromise that may be required to achieve a settlement will be unacceptable. The reality is that although mediation may involve some compromise, it is also an opportunity to explain the strengths of your case and undermine the perceived strengths of the other party’s position. Effective collaboration (rather than mere compromise) can also achieve more imaginative results.
Arranging a Mediation
Mediation offers a plethora of benefits, including cost savings, confidentiality, and a sense of empowerment as parties retain control over the outcome. Arranging a mediation is a straightforward process. To book a mediation email enquiries@aswm.org.uk with details or contact us here.