Mediation has become an essential tool in resolving civil disputes in England. In civil litigation cases, mediation can provide a faster, more cost-effective, and less adversarial approach to resolving disputes. This blog post will provide an overview of mediation in civil litigation, explaining how it works, its benefits, and the legal framework surrounding its use in England.
What is Mediation?
Mediation is a form of alternative dispute resolution (ADR) where an independent person, the mediator, assists the parties in a dispute to try to reach a voluntary agreement or at least to narrow the issues in dispute.
Unlike judges or arbitrators, mediators do not make decisions for the parties but facilitate negotiations by helping them communicate effectively and to ultimately settle the dispute.
In civil litigation, mediation typically takes place outside of court, either in person or virtually, although it can sometimes be part of a formal settlement process. It can be used in virtually any type of dispute.
How Does Mediation Work in Civil Litigation?
The mediation process generally follows these steps:
- Choosing a Mediator: The parties select a neutral, qualified mediator, who more often than not tends to have had a legal background.
- Pre-Mediation Preparation: The mediator may request documents and a summary of each party’s position to help understand the issues at hand. Confidentiality is paramount at this stage and throughout the process ensuring that information shared during the process cannot be used by a party in future legal proceedings.
- The Mediation Session: During the mediation session, the mediator acts as a ‘ go between’ and facilitates discussions, often meeting with each party individually (a process known as “caucusing”) to identify the key issues, explore possible solutions, and encourage compromise. The mediator may offer suggestions, but the parties retain full control over the outcome.
- Resolution or Further Negotiation: If an agreement is reached, the mediator will help draft a settlement agreement, which can then be made legally binding. If no agreement is reached, the parties may proceed with litigation or consider other forms of dispute resolution.
Benefits of Mediation in Civil Litigation
- Cost-Effective: Mediation can save significant costs compared to the lengthy and expensive process of litigation. Court fees, legal representation, and expert witness costs can quickly add up in a civil case, while mediation usually involves lower fees. The mediation day can be an expensive one but can be well worth it if it helps resolve the dispute.
- Time-Saving: Mediation sessions are typically completed in a day or two, whereas litigation can drag on for months or even years, especially if the case goes to trial.
- Confidentiality: Unlike court proceedings, which are public, mediation is private. This allows the parties to discuss sensitive issues openly without the risk of public exposure.
- Preservation of Relationships: Mediation fosters collaboration, which can help preserve business or personal relationships that might otherwise be damaged in the adversarial atmosphere of court.
- More control – the parties are encouraged to come to an agreement on a voluntary basis and this is better than a decision imposed by the Judge which no party may want
- Informal – the parties can attend in a relaxed environment and can negotiate freely. More formal methods of dispute resolution include Early Neutral Evaluation and Financial Dispute Resolution but these are much less common methods in pratice in the writers’ experience.
The UK’s civil justice system has increasingly embraced mediation as a means to reduce the burden on courts and improve access to justice.
The Civil Procedure Rules (CPR), which govern civil litigation procedure encourages the use of ADR, including mediation.
Under common law Judges have the power to direct parties to engage in ADR as long as it does not impair the prospect of a party having a fair trial.
Mediation is not always a panacea and litigation is sometimes the only option
While mediation offers various advantages, it is not always the best option for every case. For example, in some disputes, especially in cases involving financial abuse or fraud, a power imbalance may make mediation inappropriate.
Some cases, such as those requiring urgent interim orders or those involving public interest, may not be suitable for mediation.
If one or more parties are unwilling to engage in good faith, mediation may not lead to a resolution. Furthermore, it may not always be appropriate in every case or even in the majority of cases to have a mediation early on before relevant disclosure of documentation has been provided.
Engaging in mediation should not be viewed by either party as a weakness but a party may not necessarily want to engage in mediation on a weak footing and hence may want to ensure they put their best foot forward early on.
A party who unreasonably refuses to engage in mediation may face potential adverse cost consequences but the reality is that some people simply do not wish to choose the mediation option.
For different reasons, court proceedings may have to be issued and mediation may need to be postponed to a later date.
Contact Our Expert Solicitors Today
It is important to take legal advice from an experienced litigation solicitor early on. Solicitors are accustomed to the art of negotiation and may be able to help resolve the dispute early on without the need for mediation through exchange of correspondence. An experienced solicitor will advise on whether and if so at which point mediation should be explored.
Speak to us today by calling us on 0161 667 3686 or fill out the form below.
