Pam Douglas is a solicitor with local firm Wainwright & Cummins. Each month, she takes a common enquiry and asks a colleague to answer it for readers
Whether it’s striking workers, warring neighbours, divorcing couples or companies wrangling over finances, we hear a lot about mediation these days and are increasingly being encouraged to give it a try. My colleague, Aneesha Bhunjun is a trained mediator, and gives her insights on the subject …
Mediation is a type of “alternative dispute resolution” or ADR which is designed to help settle disputes without the involvement or intervention of a court.
It’s not new; it’s been around for many centuries all over the world in many different formats. In the UK, mediation is a recognised process embedded into the legal system, and is defined as procedure in which neutral, specially trained professionals assist parties in reaching a settlement to a dispute.
The process is a voluntary one and empowers the parties themselves to be in control of the outcome rather than a judge. Nobody is obliged to be bound by the process and they are free to leave at anytime. However, where it is successful and parties do manage to arrive at an agreement, it can be formalised in writing and become the basis of a legally binding and enforceable “consent order”.
There are so many advantages in opting for mediation over litigation, including cost, speed, flexibility and often the preservation of future relationships for example: employer/employee; landlord/tenant and business partners to name but a few.
Brilliantly effective though it can be, mediation may not be for everyone or for every situation. But, over the years, the courts have increasingly come to expect disputing parties to go through mediation before their arguments can be heard. Although it has, at least in theory, remained a voluntary process, there’s further “encouragement” in the form of financial penalties for those who refuse or fail to mediate without extremely good reason.
The Civil Justice Council (CJC) initiated a consultation process in 2017 that appears set to go even further by making ADR and, in particular, mediation compulsory in most civil disputes. Other areas of the law, particularly matrimonial and employment disputes, already have compulsory mediation. So why not other civil disputes, such as inheritance claims, property or boundary disputes?
The CJC is not suggesting that the parties must settle, only that they should be compelled to at least actively try.
If you would like to discuss mediation or would like help with this issue or any other, please feel free to get in touch at firstname.lastname@example.org.