Mediation is a voluntary and confidential process used to resolve disputes with minimal delay, cost and the stress of court proceedings. The role of an independent mediator is to guide parties through exploring possibilities and achieving a self-determined agreement. However, mediation is not always suitable for every dispute. At the outset, it is important to assess whether it would help parties manage risk and increase their chances of achieving settlement.
A key starting point is to consider whether the parties are willing to engage. Mediation is of most use when all parties cooperate with a shared intention to resolve matters and participate in discussions directly or through representation. Even with strained relationships, parties can still achieve success through safe communication.
What type of dispute is suitable for mediation?
Mediation is suited to a wide range of disputes such as (but not limited to):
- Professional negligence
- Breach of contract
- Money claims
- Bankruptcy
- Insolvency
- Intellectual property
- Defamation
When is mediation not suitable?
Mediation is unsuitable when one party is unable to negotiate freely because of accusations of violence and intimidation. Prior to mediation taking place, the mediator will usually screen for such safeguarding issues to ensure there is a safe environment for everyone to communicate and have their views heard. If violence or intimidation is present, courts are the recommended route to take.
Mediation is not appropriate if there is a major imbalance of power between the parties. Mediators frequently implement measures to ensure fairness when a party withholds crucial documents, employing protections like involving legal advisers or establishing disclosure procedures and organised meeting plans. Where power imbalances cannot be managed, another method of resolution should be considered.
Does the nature of the dispute influence mediation?
The nature of a dispute greatly influences the use of mediation. Where there is scope for compromise, ongoing relationships and creative solutions in family arrangements, contract disagreements and business partnerships, mediation is often the best route. It is less appropriate when a binding legal precedent is needed or one party wants public judgment.
Is a decision made at mediation legally binding?
A decision reached through mediation is not automatically legally binding simply because it arises from the mediation process itself. The legal status of any outcome depends on how the agreement is recorded and formalised. If the parties reach an agreement during mediation and then record the terms in a written settlement agreement which is signed by all parties, that document will generally be treated under UK contract law as a legally binding contract, provided the usual elements of a contract are present. In many civil or commercial disputes, mediation ends with a settlement agreement or compromise agreement, and once it is signed it can be enforced in the same way as any other contract.
In many disputes, the mediation simply results in a written settlement agreement. Provided the document is properly drafted and signed, it will generally be enforceable as a contract without any need for court involvement. If one party later fails to comply with the agreement, the other party may bring a breach of contract claim in the usual way.
At Nath Solicitors, we give expert advice on mediation. If you need assistance, please call us today on 0203 983 8278 or email us at enquiries@nathsolicitors.co.uk.