Now we can do this the easy way or we can do it the hard way.
No, I am not selling a new financial product and I do not
hold your arm up your back, nor a gun in your ribs.
My message is ” Don’t litigate – mediate!”
That is the message from Andrew Taylor, a full time
commercial mediator who is dedicated to increasing the knowledge
and understanding of mediation in business. He goes on,
“Compared to litigation, mediation is faster, cheaper and
more civilized. It avoids the risk of damaging publicity
and it offers scope for imaginative solutions.”
In fact, Andrew Taylor is so enthusiastic, he has even written
a book about it!
Everyone knows what mediation is, yet few people are really
confident about how much they know, how it works, and whether
they can use it.
Mediation is a process in which a third person, “the mediator”,
helps the parties in dispute to find a mutually satisfactory outcome.
You could say there is nothing exciting there.
Mediation must have been used long before any court system
was invented. Despite that, we tend to overlook mediation
as a possibility for settling disputes between employer and employee,
business and business.
These are characteristic advantages of mediation over litigation:
Speed – A dispute can be resolved by mediation in a matter of weeks
rather than the years it might take in court. If the case is
particularly urgent and the parties are prepared to pay for priority
and premium time, there is no reason why a commercial case could not
be concluded in a fortnight. The usual time scale for a
small commercial case is around six weeks, and for a more complicated
commercial case, around six months. The same case might take
five years to go through the court system.
Cost – In most cases, the saving over comparable litigation costs
is very large. Because litigation is expensive.
It is obviously advantageous to settle a dispute before litigating.
The Civil Procedure Rules encourage solicitors to do this.
How far you use your solicitors is up to you, but however you deal with
it, a case over in weeks will cost a lot less than one that drifts on
Of course the Court system takes no account of the value of your time
as a litigant. If you are a senior manager involved for say
1,000 hours over a period of three years, your lost time may have been
worth £50,000 – £100,000.
Stress free – Litigation is undoubtedly very stressful.
Everyone finds a Court appearance stressful. It is not only
the day in Court itself but the weeks of anticipation
and worry beforehand. Mediation, by contrast, should be sufficiently
formal to enable a constructive and satisfactory conclusion but,
at the same time, sufficiently informal to promote a friendly
environment where the parties can discuss their differences openly.
Confidentiality – only the parties and the mediator ever know what
is happening, so mediation carries far less risk of damaging publicity.
Your business can protect its reputation, its brand, and its
technical secrets. On the other hand what is said in court
is on public record.
The combination of confidentiality and speed in a mediation enables you
to keep secret the very fact of a dispute. Once you have issued
a writ (or had one issued against you) then your auditors,
shareholders, and financial commentators will be on top of you for
an explanation. Your accounts could be blighted for years.
If you are a public company, your share price will be affected.
In contrast, a mediation can be over in weeks. Only you even know you
ever had a problem – and even you have half forgotten the detail
because it never interrupted your main purpose. The uncertainty
represented by litigation simply does not exist.
Flexibility – Government lays down fixed court procedures.
Because mediation is informal, more imaginative solutions can be
considered. You can consider a settlement that might involve all
sorts of solutions other than payment or receipt of money.
It might be important to you or your dispute party to deal with timing,
quality, future trading, certification – aspects where a court has
no jurisdiction to help you. what is shuttle mediation