There are 101 reasons why some people think that mediation wouldn’t be suitable for their problem. Here are some of those we’ve genuinely been given.
It’s not me, it’s them. I’d mediate but they won’t.
I’m willing to be reasonable but they won’t let me see the documents I’ve asked for.
We’ve got nowhere with solicitors this past 14 months, so mediation is hardly likely to work is it?
Mediation won’t work for us, we have very different views.
I’ll compromise, but the other person is totally unreasonable.
I’m worried about mediating. The other person is very clever and I won’t know what to say.
Are any of these reasons why mediation should not be explored?
In our view no. There are only three situations where mediation would never be appropriate:
One or more of the parties is not willing to to mediate
There is often resistance when one party mistakenly believes that the court’s outcome is predictable and that they are certain to win. Where they are supported by lawyers who understand and explein that a court outcome is unpredictable, they will see the benefits of mediation.
One or more of the parties is incapable of making their own decisions
For example, in the case of a mental health impairment or brain injury. Here, the court process makes sure that any vulnerable person is properly represented and that someone is on hand to make a final decision – a judge.
One or more of the parties requires a protective order of the court (injunction)
Where a child or adult has been threatened with harm, or where property is at risk of being dissipated or removed from the country, only a court order can offer the necessary protection..
We don’t suggest a one-sized fits all approach to civil mediation
You may think that civil mediation always takes place over a pre-determined number of hours or days. You may think that it has to take place with the participants never meeting, separated in different rooms. You may also think that lawyers always need to be present. If that’s what you’ve heard, you’d be wrong.
We prefer to assess each case on its merits and suggest a way of working that suits everyone. What we never do is provide clients with unreasonable expectations and then rely on fatigue and hunger to force weary disputants to settle late into the day or night when they are most ready to capitulate. That may work for some mediators, it doesn’t work for us.
What we do is fully assess the problem by meeting the disputants in advance – either in-person or over a webcam. Having heard what they have to say, we will then suggest a process that could involves a series of meetings or a single day-long session, lawyers or no lawyers, meeting together or apart, in-person or over a webcam.
What are the benefits of mediation?
It leads to better outcomes because the participants, not their lawyers or the courts, are in control. You decide when there’s a proposal which is acceptable, not someone else. Power imbalances are addressed whereas in the adversarial process, the one who has the deepest pockets and the greatest resilience is more likely to prosper.
It’s quicker. Speaking face-to-face is always going to be a more direct and less misunderstood way of communicating than correspondence – the law profession’s’ preferred approach. This means mediation takes 6-12 weeks, rather than 56 weeks, which is what the average case worth more than £10,000 takes.
Because it’s quicker, it is less expensive. The number of hours of a professional mediator’s time needed to help sort out any problem is a fraction of the number of hours two lawyers and two barristers take when correspondence and litigation are the chosen route. And because the mediator’s fee is typically shared, it is less expensive again.