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Mediation; It's good too talk

21st January 2013

Disputes often arise because of a failure in communication. mediationSometimes all you need to fix things is the time to get together to talk about it and a willingness to listen. Many disputes are resolved informally before anyone even thinks of taking legal action. But sometimes people need a helping hand in sorting out their differences. Mediation can be a very effective (and cost effective) way of settling disputes.

What is mediation?

Mediation is a process where a third party (a mediator) helps people to settle their disputes. The mediator acts as a neutral facilitator to help those in dispute reach an agreement. It is a type of alternative dispute resolution (ADR). Mediation has particular features:

  1. It has a set structure.
  2. It is usually private and confidential.
  3. It is usually a voluntary process.
  4. The process is not legally binding, but it may result in a legally binding agreement.
  5. It focuses on the people in dispute finding their own solution, rather than having a solution imposed on them by a third party (e.g. a Judge).

When is it used?

Mediation is used for all sorts of disputes including:

  1. Neighbour disputes (often about noise or parking)
  2. Family issues (custody, financial settlements, separation agreements)
  3. Employment problems (discrimination, performance or conduct issues)
  4. Commercial disputes (contracts, goods and services and even building disputes).

Mediation is often recommended where the people in dispute need to maintain an ongoing relationship, for example, a couple who will have joint custody.

What are the main advantages?

  1. Mediation is usually cheaper than legal action, if it is successful.
  2. Mediation is usually a lot quicker than legal action. Mediation is usually completed quickly (often in a day) and can normally be arranged within a week. Court cases may take 6 months or longer to be heard and decided.
  3. The participants are responsible for any agreement, they do not have an agreement imposed on them by a third party.
  4. Mediation may result in a wide range of settlement options not available from a court.
  5. Mediation is usually confidential, unlike court proceedings which are usually public.
  6. Mediation is usually more successful in preserving ongoing relationships than legal proceedings.
  7. Mediation does not have complex procedural rules

What are the disadvantages?

  1. If the mediation is unsuccessful then it is an additional cost for the participants.
  2. Mediation is not usually legally binding. There may be additional steps that need to be taken to give any agreement legal force.
  3. Mediation is unlikely to work unless participants have a genuine desire to settle the dispute. Sometimes the mediation can be used as a "fishing expedition" where one side tries to get information from the other.
  4. Mediation cannot set a legal precedent.
  5. Mediation does not have the procedural rules and protections of court action.

As with all changes and new legislation how the courts will interpret these has yet to develop. For any queries please do not hesitate to contact us on 08700434284.

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