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Mediation –The Middle Way of Dispute Resolution
Let’s face it, sometimes, no matter how well we run our businesses and treat our customers, problems sometimes arise and people can’t agree on who should sort it out. That is just an unfortunate aspect of human nature. An even more unfortunate, but understandable, aspect of it is the tendency we all have to defend our own actions even when we might, secretly, acknowledge that we’re wrong, may be just a little bit!
Traditionally, dispute resolution has been a process of trying to conduct negotiations between two parties neither of who is willing or able to see the other’s point of view. The lawyers then come in and very quickly the argument ends up in the courts, costing a lot of time and money. THIS MAKES LAWYERS HAPPY! In fact most of the process isn’t about ‘resolution’ of the dispute at all.
For a number of years people have talked (and talked and talked) about ‘Alternative Dispute Resolution’ and most of the talk was very enlightened and noble about increasing access to justice and maintaining customer relationships and lots of touchy feely stuff which lawyers didn’t understand (there’s no fees in being touchy and feely!).
More recently however a new approach has begun to emerge from the USA, a country not known for its touchy feely approach to disputes. While mediation has been around in relation to family and neighbourhood disputes for some years, it has never been structured in a way that suited it to commercial disputes. That situation is changing very fast and we have been involved in recent years in advising clients in relation to commercial mediation and really resolving disputes, rather than leaving it to a judge who knew nothing about their business to come up with a decision based on evidence, presented in a very cumbersome and sometime unhelpful fashion (but it suits the lawyers to maintain the mystique).
The process can be started at any time, even close to a court hearing, although ideally the sooner it starts, before attitudes have hardened, the better. It is generally very quick and involves a professional trained mediator – sometimes a lawyer but often not - working between the parties to try to identify what the real problem is and how it can be sorted. Usually it involves some degree of compromise but it might not. While this sounds about as touchy feely as it gets – take it from us, thirteen hours thrashing out a complicated deal between three parties is anything but touchy feely – it’s all about very hard headed business sense!
The benefits to your business of this approach to managing a dispute are that it takes much less time – perhaps two to three months instead of two to three years. You should be able to maintain a working relationship with the other party and in the real world keeping a customer is much easier than getting a new one. You are in control of the outcome, not a judge. Finally, you might be surprised to hear from a lawyer, it saves you money on legal fees.
Unless your business is about being charitable to lawyers, all of this should sound like good news and generally it is although it is not suitable for all disputes all of the time. One leading mediation company reports an 80% success rate in resolving disputes this way.
In practice, mediation probably works better when you have a lawyer involved since he or she can give you an objective perspective on what’s going on, guide you about what should and shouldn’t be conceded and what the consequences will be of agreeing or not agreeing a particular solution. Even so, the cost of a lawyer’s time for a mediation will be substantially less than for the course of a court action.
This is only a brief overview of what mediation is all about. If you want more information about mediation, or any aspect of dispute management please call Robin Millar or Ruth Waters on 01383 721 621. Alternatively you can email
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