The Choice - Litigation or Mediation

Whether in business or private life we can find ourselves in conflicts that leave us few options open. Few conflicts are insoluble but the dispute resolution method we select will determine not only the outcomes possible but many other events on route to that resolution.

A quick comparison of the two processes ;

Speed-- Litigation is anything but quick. The courts set timetables according to available court dates, there are generally numerous directions hearings dealing with procedures to be followed by each party, there are inevitable procedural and tactical arguments and any final adjudication is only a distant prospect. Mediation can take place very quickly once we are instructed. The Mediator undertakes a preliminary assessment with each party to establish that the dispute is suitable for mediation, this can be done by telephone or email. At the same time we can decide what documents need to be disclosed and exchanged between the parties, what role the lawyers need to play in the process and an appointment for the first meeting can be arranged. The process towards agreement and how long this takes is entirely in the control of the clients.

Cost-- Litigation is expensive. Lawyers are expensive. The formality and complexity of the court process creates opportunities for tactical maneuverings that aggravate an already costly process. In litigation lawyers are engaged throughout the whole process and clients are only too well aware of lawyers hourly rates. Mediation undertaken by skilled professionals should not be undervalued but remains a comparatively cheap process. You are free to inquire of us as to our hourly rates. These will vary according to the complexity, value and type of dispute to be mediated but invariably our rates are a fraction of those charged by lawyers of any seniority. Also our charges are shared between the parties so the cost is divided between them. Budgets and daily rates can be agreed.

Control--In a nutshell, Litigation is in the control of the courts and the courts procedural rules. Those rules are complex and inflexible. Even lawyers who are expected to know those rules can struggle not to fall foul of them and when this happens the courts can and do impose costs penalties. Mediation is in the control of the mediator and the parties working to agreed, sensible and simple rules. The mediator explains clearly what is expected of everyone taking part and clients who choose mediation have no difficulty with the process.

Results-- Both Litigation and Mediation will produce an outcome. A litigation outcome if the litigation ''goes all the way'' is whatever the judge decides. Jhe judge imposes a decision, often one that neither party likes. The judgement is according to law and does not take account of commercial realities nor is there any analysis of the parties wishes or needs. A judges discretion is limited as is his menu of possible outcomes. Mediation differs fundamentally in this respect. No-one imposes any judgement on the clients. The mediator does not decide the outcome, this is in the control of the clients. With assistance of the mediator the clients design their own solution taking account of what is most important to each. The agreements that emerge from mediation can be creative and tailored precisely to the clients coming as close as circumstances allow to a ''win-win''.

Success Rates-- Before you embark on litigation ask your solicitor how many cases actually go ''all the way'' to a trial. How many litigants end up accepting solutions at the court door that they had rejected throughout the long and difficult litigation process. How many cases collapsed through financial exhaustion.Ask also what happens if you litigate and lose.Mediation as a process claims a very high success rate. The estimates vary but it is generally acceted that where clients commit to mediation between 80-90% of cases reach agreement.

Mediation makes business sense-- it is cost effective, minimizes business disruption, has the potential to repair business relationships and is conducted with commercial realism . Enough has already been said regarding litigation in this context.

The Stress Factor-- Litigation is stressful for all concerned, there is little need to justify that proposition. Mediation can be conducted in a fairly hard headed way but a skilled mediator makes the process civilized, minimizing trauma for the clients as far as is possible.