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A better way to resolve business disputes
Disputes swallow up management time, cause stress and injure business relationships. But few businesses that have traded for some time will have been able to avoid disputes altogether. The next best thing is to resolve any dispute quickly and cost-effectively.
Mediation is a very effective method of doing that. The courts have recognised this and in any civil court claim in England and Wales, each party is now obliged to certify to the court at an early stage that they have considered mediation and if they have rejected it, to explain their decision.
Mediation is a process aimed at achieving a settlement and mediators are individuals who have undergone specialised training to help them assist people to reach agreement. Many mediators have formal legal training but there are many fine mediators who come from very different backgrounds. The mediation training course I went on included a number of lawyers but also a retired anaesthetist and an actress.
One cannot make someone who is in dispute with your business take part in mediation if they don’t want to. But business people are familiar with negotiation and they understand the benefit of early resolution and this is really just a negotiation that is assisted by someone else - the mediator.
When acting as a mediator I never say that I think one party is right and the other wrong. If I were to express a partial view in that way then I would surely lose the confidence and co-operation of one of the parties immediately. And that would reduce the chances of achieving a settlement. Rather, I work to build a relationship of trust with both sides, meeting with them in private and inviting then to share with me their goals in the negotiation, the strengths and weaknesses of their cases as they perceive them, and their alternatives to a settlement. Without revealing to anyone what I have been told privately, I am in then a unique position to see where the potential points of agreement are and carefully to steer the conversation in that direction.
The settlement rate nationally for mediations is high and my own experience as a solicitor specialising in business disputes is that even when my clients’ matters haven’t settled at mediation, the mediation process can significantly shorten the remaining litigation process. That is because everyone will have understood much better from the mediation what the battle is really all about and what they are looking to gain from it.
When a dispute arises, why not consider mediation at an early stage? My view is that as soon as you know what you want and you think you know what the other side to the dispute want and they are sufficiently far apart that you think you cannot bridge the gap on your own then it is time to consider mediation.
For more information please contact John Wiblin, an accredited civil and commercial mediator and Head of our Dispute Resolution team.
Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.