Mediation | Alternative Dispute Resolution
In previous articles we have explained that Alternative Dispute Resolution (ADR) provides a method of resolving conflicts and disputes outside of the courtroom. ADR seeks to fulfil the ‘overriding objective’ introduced by the Civil Procedure Rules Part 1.4(2) of providing access to civil justice by making it more time and cost effective. The importance of ADR is such that in pursuance of this objective, a court is entitled to exercise its Case Management Powers to ‘encourage the parties to use an alternative dispute resolution procedure.’
The consideration of engaging in ADR is considered so fundamental, that in Halsey v Milton Keynes General NHS Trust, Steel v Joy and Halliday [2004] the court stated that parties will be expected to engage in ADR or have a reasonable answer for refusing to do so, failing which, costs sanctions may be imposed on the refusing party.
ADR can take various forms, one of which is mediation. This procedure involves an independent third party seeking to reach an outcome which is mutually acceptable to the opposing parties. Compared with other forms of ADR, mediation allows for flexible solutions and settlements and it is considered that by adopting this procedure the previous amicable relationship of the parties in disagreement may be maintained.
Mediation can be used to seek to resolve almost all types of civil disputes including breach of contract disputes and intellectual property disputes.
Although mediation is becoming an increasingly popular method for seeking the resolution of disputes, we find that many clients remain uncertain as to the nature of the process and, if a settlement is reached, how it can be enforced in the event of default by the other party.
Stuart Southall of KANGS now addresses those uncertainties.
The Mediation Process
Features of the process
- It is both flexible and confidential. The discussions and proposals made during mediation are private, which offers parties the assurance that nothing shared can be used against them later in court, should a court Hearing become unavoidable.
- Participation is entirely optional.
- The independent and impartial mediator will help the parties talk through the issues and negotiate with the aim of reaching a mutually agreeable solution.
- The parties may engage mediation both before taking legal action and during the course of legal action in the pursuit of a settlement of the dispute.
- Unlike in court, where a Judge makes all of the decisions, mediation allows the parties to decide how they want to resolve the dispute, and do not have to accept an outcome if they are not happy with it. The mediator does not impose a decision but facilitates communication to help the parties find a mutually acceptable solution.
- A potentially quicker, less expensive and more efficient way of resolving disagreements which allows the parties to move on from the problem much sooner.
- Heads of terms of settlement may be agreed, with the formal documents being prepared after the mediation and further consideration.
- Mediation has a high success rate, with the majority of civil disputes settling promptly.
Agreeing a Mediator
A mediator is a neutral person who is frequently an expert in the relevant field or a lawyer who is an experienced mediator.
All parties must agree on the appointed mediator. Typically, the Claimant will propose three alternatives and invite the Defendant to select one of them. Alternatively, a professional group can be requested to nominate one.
If either party objects to the manner in which the mediator conducts the mediation, they do not have to settle the case and there is no requirement to settle on the date of the mediation. It is open to both parties to try again and appoint an alternative mediator.
Mediation Hearing
There are no formal rules of procedure or evidence which have to be observed. A mediation hearing is totally different to a Court Trial or an Arbitration Hearing. It is not adversarial but a negotiation in which the mediator will encourage the parties to negotiate and continue doing so until an agreement is reached.
Prior to the hearing, the mediator will examine any documents, statements and other information provided and seek to establish the potential outcome which both parties would find acceptable. He will also ensure that each party fully understands the issues raised by the other.
The mediator will establish and prepare a list of the people who will attend the hearing and may well set out some ground rules to ensure that the event proceeds smoothly and is not disrupted by inappropriate behaviour or demands by either side.
The mediator will probably commence the hearing outlining the main issues and each party will be able to put forward their grievances.
If a resolution to the dispute is reached, the agreement should be recorded in a written ‘Settlement Agreement.’ This will not be strictly controlled by the mediator and each party must ensure that the agreement accurately contains all aspects of the resolution. However, the mediator will endeavour to ensure that the Settlement Agreement is finalised and signed immediately after the hearing whilst the detail remains fresh in the minds of everyone.
If the arbitration has taken place after court proceedings have already commenced, the parties should sign a ‘Consent Order,’ otherwise known as a ‘Tomlin Order’ which will bring the formal litigation to a conclusion.
Enforceability of a Settlement Agreement
The Settlement Agreement, if properly worded and meets the criteria required of a legally binding contract, may be enforced in a civil court if the other party breaches the agreement.
If civil court proceedings had commenced prior to the mediation hearing, the terms of agreement should be recorded formally in a ‘Consent Order’/ ‘Tomlin Order.’ Once filed, this formal Court Order, can then be enforced in the same manner as any other civil Court Judgment.
In a more complicated, commercial mediation, the Settlement Agreement may have been prepared to include comprehensive clauses making provision for the Agreement’s enforcement such as by way of an Order for Specific Performance or the payment of liquidated damages. Should such clauses become operative, enforcement could be sought through the usual civil court channels.
How Can We Help?
Should you be involved in any form of commercial dispute or any situation which may require any form of Alternative Dispute Resolution or formal civil proceedings to enforce your rights, it is essential that you seek specialised advice and guidance.
Mediation can offer an effective and efficient way of dispute resolution. However, like all legal proceedings, it involves hidden complexities that necessitate the expertise of experienced professionals to successfully navigate.
KANGS offers specialised mediation services to help businesses resolve disputes efficiently and amicably. Our trained mediators are experts in facilitating negotiations and resolving disputes.
Our mediation solicitors ensure that any Settlement Agreement (or Consent Order or Tomlin Order where appropriate) is not only legally binding but can be enforced through the courts if necessary. They make sure the Settlement Agreement accurately reflects all aspects of the settlement reached between the parties and that the dispute is fully resolved between them and does not ‘leave the door open’ for further disputes.
The team at KANGS includes contract dispute solicitors and mediation solicitors. We will be happy to advise you upon the various procedural options available and guide you through the process. Contact us using the details below:
Tel: 0333 370 4333
Email: info@kangssolicitors.co.uk
We provide initial no obligation discussion at our three offices in London, Birmingham, and Manchester. Alternatively, discussions can be held through live conferencing or telephone.
Top ranked by leading legal directories Chambers UK and the Legal 500.
