Gardner Leader

For those involved in commercial disputes, mediation can offer a faster, cheaper and more constructive option than litigation.  In fact, an estimated 80% of cases that go to mediation are settled as a result, and nearly always in a fraction of the time. Gardner Leader partner and accredited mediator Derek Rodgers explains what mediation is and the vast array of benefits it can offer.

The courts are now encouraging parties to resort to mediation at an early stage in any dispute.  And it is clear to see why.

Mediation offers a confidential forum in which an independent third party assists those engaged in a dispute to find a solution. It is an entirely voluntary process and the mediator does not judge the dispute or impose a solution.  Instead, the mediator helps those involved to identify the real issues in the dispute and explore what it will take to resolve them. 

The mediation will normally start with a joint session at which each side puts forward their view of the dispute.  The mediator will then go between the parties to have private sessions with each, at which issues and possible solutions are discussed. 

It is estimated that 80% of cases that go to mediation are successfully settled. Even where cases do not settle on the day of the mediation, it is likely that issues will be clarified or narrowed so that the dispute can be resolved soon after. If litigation remains necessary, it will be cheaper as a result.

The advantages of mediation are immense:

Speed: Because mediation is an informal process, mediation meetings can be arranged quickly, and normally last only one day.

Cost: One of the major advantages is that, by enabling the parties to resolve their dispute early, the costs of litigation can be avoided and the time and resources that individuals have to devote to the dispute can be minimised.

Flexibility and Control:  The process is informal and not bound by rules of procedure or evidence.  This means it can be adapted to suit the particular dispute. What’s more, the parties remain in total control.  They only settle if they can both agree – nothing is imposed on them and they can walk away at any time.  They find their own solution, which might go far beyond what a court could order. For example, an apology might be all that someone is looking for, or a commercial settlement might involve revised trading terms for the future, which work to the benefit of both parties.  The scope for settlement is not limited by legal rights and obligations and so the parties can use their imagination to come up with a constructive solution.

Communication:  Often parties in a dispute stop communicating with each other, and it is easy for the real issues to be lost, and for misunderstanding to arise as to what individuals actually want.  By exploring the issues with both parties, the mediator can overcome these problems and ensure each side fully understands where the other is coming from.  Each side also gets an opportunity to ‘get things off their chest,’ which can often defuse a simmering tension.

Confidentiality: The mediator discusses the case with each party separately and only discloses information to the other party if specifically authorised to do so.  This enables each to speak freely and frankly to the mediator, allowing all relevant issues to be brought to the table and explored.