What is Mediation?
Following the Jackson reforms and the current squeeze on legal costs, mediation is becoming the method of choice in resolving disputes. Judges are now concerned that alternative dispute resolution (ADR) has been attempted when deciding costs orders. Refusal to consider or co-operate with ADR can result in serious cost sanctions, even if you win your case.
CPR r.1.4 (e) states that the court should be “encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure”.
Mediation is an alternative to pursuing a case through the courts. It aims to bring parties together to negotiate a settlement which each party finds acceptable, and to avoid the adversarial conflict in court with at least one side (and often both) emerging as a loser. A mediator is appointed to oversee this process as an independent third party. The mediator is not a judge and will not make any award, but will assist the parties to reach a workable conclusion as amicably as possible.
Parties to a mediation are entitled to have legal representation if they wish.
There are many advantages of mediation compared with litigation.
- Save time – mediation aims to resolve conflicts quickly. You are not at the mercy of the courts system. If both parties agree to a mediation, this can then be organised to fit with your timescales and availability.
- Save money– a mediation considerably saves the cost on court fees and additional legal fees in the time a case can take to reach a conclusion.
- Save control – you retain the power to choose your mediator (provided both sides agree). This compares to the court system where a judge is allocated to you and you have no say on the matter. You can also control when and where a mediation takes place.
- Save reputation – Mediations are confidential and “without prejudice”. The results are not published, which means details regarding your organisation and the fact you are involved in a dispute are not revealed to the press and the wider business community. If the mediation is unsuccessful and the case proceeds to court, the mediator will not release details of the mediation to any trial judge unless required to do so by the court. Mediations can also help to save relationships with your opponent as the dispute will (provided the mediation succeeds) be resolved amicably.
How does mediation work?
- Mediation at Radcliffe Chambers proceeds as follows:
- Our clerks are able to advise on the best mediator available at the appropriate fee level for the case.
- Once you have chosen your mediator, you will then be sent a mediation agreement to sign. This sets out the terms and conditions and the way in which the mediation will be conducted. This agreement needs to be signed by both parties before a mediation can take place.
- A date and time will be set for the mediation to take place. We offer a flexible approach and can offer either a full day or half day mediation depending upon the nature of the case. Our mediators are also willing to conduct mediations outside normal working hours wherever possible.
- The mediator will need to receive all relevant documentation prior to the mediation. He
- r she will then ensure that they have “read into” the case and are aware of the facts and arguments to ensure a speedy and efficient mediation. All preparation fees are included in the fee quoted by our clerks.
At the mediation itself private rooms will be available for each of the parties, as well as a room for plenary sessions.
- Throughout the day there will be private sessions with the mediator as well as sessions where all parties and the mediator can meet together.
Should settlement be reached, parties will sign an agreement which is binding and can be enforced through the courts.
- If the parties do not reach a settlement in the mediation the dispute can then continue to litigation and traditional dispute resolution.
Who should I choose as a mediator?
The members of Radcliffe Chambers include a number of experienced counsel who are also fully qualified mediators. Members of our mediation team are fully versed in the litigation process and will be able to suggest the potential thinking of the court on certain matters. Our team are experienced members or former members of the commercial and traditional Chancery Bar, and they are all highly regarding in their field of practice.
Our team includes Jonathan Winegarten, former Chief Chancery Master.
All our members are also able to represent parties at a mediation.
Our experience in litigation means that many of our members often appear on opposing sides, and we have procedures in place to ensure that confidentiality is strictly maintained. This is also relevant to mediation and provided that the parties agree there is no impediment to members of chambers representing the parties to a mediation where the mediator is also a member of chambers.
For More Information
Please contact a member of the clerking team.