Mediation Uncovered – Part 1

Dr Mike Talbot Articles

In this series of blog posts we blow the lid off of mediation, we cut through all the vague references and foggy language and answers your mediation questions, honestly, openly and directly. This blog series is the place to be for no frills answers.

What is Mediation?

A method of resolving disputes using a neutral third party (the mediator), that is future focused and ensures a win-win outcome where all parties get what they want.

What are my other options?

Your other options are to take the other party to court (litigation), resolve the dispute yourselves, ignore the dispute and hope it will go away or to use an arbtriator.

‘Use an arbitrator’ what is that?

An arbitrator is a neutral professional skilled in the area of your dispute. For example if your dispute was regarding a boundary then your arbitrator would likely be a party wall surveyor. The arbitrator collects and works through all relevant information and then comes to a decisions regarding your dispute, which both parties are contractually bound to agree to.

Which option should I use to resolve my dispute?

All disputes are different and what suits you might not suit another person so instead I will give you the advantages and drawbacks of each method.

Regardless of this your best method is always to try and resolve the dispute between yourselves if possible. It is quick, cheap and you maintain a good relationship with the other person.

Ignoring the dispute isn’t really ever a good idea. Without a resolution the cause of the dispute will likely continue and have an increasingly large negative effect on your life.

In fact the longer your leave a dispute, the worse it gets and the more difficult it is to then resolve. You are much better tackling things early on.

When and why would I use litigation?

If all else fails then you can go to court. We recommend this as the last course of action when it comes to resolving your dispute.

Compared to the other options it costs a lot of money (you have to pay for lawyers time, the judges time and the court time), it takes a long time (usually at least year, the courts are overburdened), your relationship will be over (it is an adversarial process that pits you against the other party, you will probably never talk to each other again. not great if you work together or live together) and it is very stressful (however robust you are it is a huge drain on your time, resources and sanity).

So when and why would use it? if absolutely everything else has failed and you need the dispute resolving no matter how long it takes, how much it costs and however stressful it is.

When and why would I use arbitration?

It is usually cheaper and faster than litigation, although like litigation there is invariably a winner and a loser so you need to be absolutely positive that your case is bullet proof – don’t forget that whilst you may think your case will succeed the other party is also confident that they will succeed and they must be confident for a reason.

So only use arbitration if you are beyond a shadow of a doubt of your case being successful because you will be contractually bound to whatever the arbitrator decides, whether it is in your favour or not.

You should only consider using arbitration if you have a very specific dispute that a subject specialist arbitrator will be able to make a ruling on. Many disputes will be unsuitable for arbitration, especially interpersonal disputes between colleagues, neighbours, tenants and family members.

When and why would I use mediation?

Of the three professional options mediation is usually the cheapest and the quickest, that isn’t because itis any less useful it is because there are no courts involved, nor are there stacks of information to pour through.

Unlike the other options mediation isn’t so much about what has happened in the past that can’t be changed, it isn’t about right and wrong or winners and losers it is about finding a way to move forwards that all parties are happy with it is what we call a win-win scenario, where as litigation and arbitration are win-lose scenarios (one party is successful at the expense of the other).

So it doesn’t matter what has happened and who said what on what date, it is about you getting what you need to be happy and to be able to move on.

It means you don’t have to wait for a court date or for an arbitrator to go through years of information, a mediator can be with you within five working days and most mediation cases usually take no more than day.

It means you don’t have hours of labour wage to pay to a lawyer or arbitrator, the ministry of justice estimates mediation to be 83% cheaper than litigation.

So mediation should always be your first port of call, it can deal with all kinds of disputes whatever they are about and whoever is involved.

And whilst mediation is successful 80%-90% of the time it doesn’t stop you from going to litigation or arbitration afterwards, so what have you got to lose?