INTRODUCTION:
Now that The Meeting Space at The Law Society House is open for business it is timely to set out some information and observations on the benefits of solicitors promoting mediation with clients engaged in, or about to embark on litigation of contentious matters and disputes.
First, we should consider what particular factors should encourage us to consider recommending the mediation of our clients’ disputes and contentious matters:
- The longer disputes last the more costly they tend to be
- The vast majority of disputes do resolve without a judicial hearing and decision
- Clients (and indeed Solicitors) have a reluctance to make any concession or to compromise their position on a disputed matter until an exploration and testing of the factual matrix and issues has occurred
- The sooner a dispute can be resolved the sooner clients can move forward with business/relationships/employment, and end the inevitable disruption, distraction and stress a contentious matter can inflict
A separate but important consideration is that a Solicitor who fails to consider mediation and advising a client about mediation (or other ADR) is potentially exposed to a complaint, or worse, by a client who concludes a contentious matter unsatisfactorily in terms of outcome/cost/Court experience.
Second, we should think about how to create the dynamic for engagement in mediation:
- With the knowledge (and possibly previous experience) of the potential benefits of mediation and what it involves, have a conversation with your client. Even if a client opts not to attempt a mediated resolution they ought to appreciate that their solicitor has raised and talked them through that option
- When client’s instructions have been secured then there needs to be engagement with the solicitor for the other party, and if an initial approach is not productive then potential costs protection (and additional leverage to encourage engagement) may be achieved by sending correspondence proposing mediation (and referring to any relevant Pre-Action Protocol or Practice Direction).
We now consider some specific types of disputes and factors that make them particularly suitable for a mediated resolution.
BUSINESS DISPUTES:
The broad range of business disputes are perhaps those most frequently considered suitable candidates for mediation. Business and commercial clients generally see the potential benefits that a mediated settlement can offer, they want to achieve an economically sensible settlement at the earliest appropriate stage and to move on with normal business activities not distracted by a time consuming, costly, and often unpredictable Court outcome. In such disputes there are often issues at play beyond establishing the facts, interpreting contract terms, calculating losses and applying legal principles (in other words the types of issues that we tend to focus upon as lawyers); business clients will see that a mediation has the potential to deliver a structured resolution that can address continuing contractual/trading relations, renegotiate contractual terms, or restructure businesses for example. The mediation also allows underlying factors which may be driving a dispute or preventing its resolution to be addressed in a way not available in the Court room; often there are personality clashes, bad blood, family relationships, distrust and pride which can be vented in the protected and confidential context of a mediation. Business people also value the fact that a solution to the dispute lies within their control and influence rather than handing the risk of an imposed outcome over to a third-party decision maker/Judge. A mediation provides a safe and private environment for your business clients to fully explore the issues, ascertain what options for resolution might be possible, and to weigh up the risks and economic factors in an unpressurised forum. Mediation offers a logical and interests-based opportunity for business clients to attempt to resolve their disputes.
PROPERTY DISPUTES:
As we all know property law focuses on disputes over the creation, ownership, transfer and protection of property interests, as well as the impact of relationship breakdowns, death and dissolution of partnerships. It involves rights of way, possessory title claims, landlord and tenant, commercial, agricultural, residential, local authority, and development property and covers buildings, green space and everything in between.
The cases are witness and fact intensive and there is no typical property dispute. They require us to advise a client about a dispute, drafting letters before action and encouraging settlement out of court. If a settlement is not forthcoming then you will move on to draft or respond to court proceedings, encourage mediation, attend court for interim hearings and finally attend court for a trial. Clients are often landowners, tenants and businesses, and cases tend to be tried in county courts, the High Court and property tribunals. These cases are time consuming and almost always fractious. The parties in many cases are reluctant to face the weaknesses of their cases and will focus on long held grievances and personal animosities
Mediation is often used in property disputes. It is an ideal way for parties to take control of their dispute and reach a decision which is beneficial to both parties. Taking control back from the court and thinking of options outside of the usual orders that a court can make is a very attractive option to those involved in property disputes. Mediation is so popular in property disputes because it allows the parties to take control and reach agreements that a judge cannot mandate on the use and enjoyment of shared rights and interests as opposed to a crude determination of a winner and loser
We see this in examples such as rights of way where there may be no clear factual picture on the history of the use of the laneway and where there is a multitude of witnesses making different assertions. A skilled Mediator can get the parties to reflect on their evidence and the likelihood that a court will accept it. It should be remembered that complex settlements of disputed rights and obligations can be achieved which a court could not achieve.