What is Mediation Law?
Mediation law refers to a type of alternative dispute resolution (ADR) in which the parties to a legal dispute meet, often represented by their respective commercial barristers, with an impartial outsider with an end goal to settle the case. The third-party is a mediator. It is this person’s job to listen to the evidence, help the litigants come to understand each other’s viewpoint regarding the controversy, and then facilitate the negotiation of a voluntary resolution to the case between the parties. The purpose of mediation is to avoid the time and expense of further litigation by settling a legal dispute early on in the process.
Unlike other forms of ADR, mediation is not mandatory on the parties. The mediator’s role is not to reach a decision – it is to help the parties reach their own decision. There is no guarantee that mediation will produce a settlement agreement. In some cases mediation will leave the litigants no closer to reaching a settlement afterwards than they were beforehand.
If mediation can end up being an exercise in futility for both sides, then why do so many litigants freely agree to attend (and to pay the associated fees)? The answer is that when mediation is successful, it can save huge sums of money. Litigation is expensive. For instance, taking a commercial case all the way to trial can easily cost £100,000 or more. On the other hand, the parties can pay a mediator a fixed fee of a few thousand pounds with a very real chance that the case will be resolved by the end of the day. The legal fees charged by the barristers will reflect the vary much smaller work load needed for a mediation.
What to Expect During a Commercial Mediation?
Commercial Mediation itself is a rather informal proceeding. To start with, the parties and their barristers will gather together with the mediator. The barristers for each side will make a short opening presentation, after which the mediator usually splits up the two sides into separate offices or meeting rooms. At this point the mediator will talk with each side individually. The mediator will offer his or her thoughts on case, and the parties through their barristers can respond by sharing information with the mediator in confidence, or with instructions to pass certain information on to the other side’s barristers. Moving forward and backward between the two rooms, the mediator will convey the parties’ settlement offers and hopefully facilitate a compromise.