The Power of Mediation
Mediation, contrary to the views of this government, is not a cheap fix it all alternative to bringing a claim in a court or tribunal. It must be viewed as an additional means of settling a dispute rather than as an alternative to court action. My training is firstly as a solicitor.I qualified as a Solicitor of England and Wales in 1992. I work as both and qualified as an Accredited Mediator in 2005. In April of that year I attended the minority lawyers conference at The Law Society headquarters in Chancery Lane and heard a presentation on mediation by the Centre of Effective Dispute Resolution . As a result of hearing that presentation I put my name forward for a five day training course and successfully qualified as an Accredited mediator in November 2005. The main differences between practising as a solicitor and practising as a mediator are as follows. Firstly when I represent a client as a solicitor I am only interested in pursuing my client’s interest.I am not interested in what happens to his,her or their opponent. This is because this country has an adversarial legal system. What that means is that, in a court or tribunal,both solicitors fight as hard as they can to convince the Judge,Jury or bench that the arguments in favour of their clients case outweigh those of their opponent. The Judge then gives Judgement in favour of one party and usually makes an order that the losing party should pay the legal costs of the other . This can cause bitterness between the parties and may mean that they are no longer able to do business with each other or are unable to maintain any kind of relationship in circumstances where that is beneficial for others (eg. in a family dispute where it is necessary for the parents to maintain some kind of relationship for the benefit of the children of the family). The beauty of mediation is that it allows both parties to come to a solution that they both can live with. This means that there are no winners and losers and that there is therefore less room for bitterness and resentment. The job of the mediator is to act as a neutral person who makes it easier for the parties to talk to each other.
The process starts with both parties coming together with the mediator in a joint meeting at which the mediator explains his or her role and at which both parties give a five minute introduction outlining their feelings and arguments regarding the dispute between them.
Legal advisors are able to attend the mediation with their clients and frequently make the
opening speech on their behalf.
The parties then leave the joint session and retire to separate rooms.
The mediator then comes and talks to both parties in turn.
Both parties can then talk about the strengths and weaknesses of their case with the mediator ,in private ,secure in the knowledge that the mediator will not ,unless given permission to do so,share that information with the opposing party.
This gives the mediator the opportunity to act as a sounding board and to reality test the party by asking probing questions. It also allows the party to share their anxieties,concerns,goals and emotions,regarding the dispute ,with the mediator.
If progress is made then,at some point,the mediator will bring the parties together ..
This is often the part of the mediation where the parties can express their emotions towards each other.That is something which is not possible in normal court proceedings.It can often have the effect of clearing the air so that the parties can talk to each other and hopefully come to a solution that they both can live with. If the parties agree to a settlement then it is useful if their legal advisors are present in order to draft the terms of a settlement in a legal format.
If a mediation does not settle a legal dispute then court action can continue but the general rule
is that whatever discussions have taken place during the course of a failed mediation cannot be
quoted in court proceedings.
However if a settlement is reached and if a legal document is signed by both parties then the
document will be binding once it is filed at court.
In order for mediation to be successful both parties have to be willing to come to a settlement. If one of the parties comes to the mediation . because they have been forced to or because they want to find out all they can about the other party’s case then the process of mediation will not work. However if both parties are genuine about wishing to come to a settlement then mediation can be a means of settling a dispute cheaply, effectively and to the benefit of both parties. As a result there are a number of winners. Firstly the parties are not subject to emotional or financial stress. Court space is freed up as matters are settled and divorced families are more likely to stay in touch .. The beauty of mediation is: moreover, that it is a very flexible tool which can be used to settle all kinds of different disputes. I myself have taken part in mediations involving National Health employees involved in a dispute with the trust employing them, a local council settling a dispute regarding the costs of care for one of its inhabitants, a personal injury case involving tripping up on a banana skin and a claim of negligence against a solicitor. Mediation is not the answer in all disputes. However where parties are prepared to give it a chance then the results can be to the benefit of everyone.
Sundeep Bhatia. Beaumonde Law Practice Evans House 107 Marsh Road Pinner Middlesex HA5 5PA 02088681614 07803727534 Authorised and Regulated by The Solicitors Regulation Authority Sundeep Bhatia Sole Practitioner SRA NO 155523 Firm SRA NO 462672