Move to mediation: a path to conflict resolution
The Move to Mediation
The market for mediation is sizeable and expanding. Latest statistics show that back in 2019, there were around 16,500 mediation cases each year. By 30 September 2022, the market had exceeded its pre-pandemic level with 17,000 cases. According to the same CEDR survey, 92% of respondents say that mediation has been successful. This all portrays a successful and growing market but before we discuss it in depth, what is mediation?
What is mediation?
In a nutshell, mediation is where there is a dispute or disagreement between two or more parties, and they introduce a trusted, independent third party to help them explore an acceptable resolution to their disagreement.
The discussion is mediated by a confidential mediator, who is neither an arbitrator nor a judge. The mediator helps the parties find common ground in a safe space. A negotiated settlement arising from mediation is only binding on the parties when they have signed an agreement reflecting the terms of that understanding.
If mediation does not lead to an agreement, all discussions that have taken place in mediation will have no bearing on any litigation that follows and will remain confidential. In legal circles, of course, this is known as ‘without prejudice’ – where you cannot divulge the details of the discussions to the court.
When is it appropriate?
Mediation can be invaluable in a range of situations. It can often be essential to resolve a disagreement between two or more employees, whether they are senior managers, board directors or equity partners.
Addressing these issues frankly is better than allowing the disagreement to grow and people’s positions becoming more entrenched. To achieve this quickly, it is a good idea to separate all the personal aspects of the disagreement and to bring a mediator in who will be independent and objective. This will enable you to resolve the argument at an early stage.
Resolving contentious disputes can save time and money – and allow you to focus on the day job. Without resolution, disputes can become contentious, emotional, and uncontrollable. They can be difficult to ignore. People often want their day in court; they want to prove a point because personalities come into the dispute. But it is rarely in the best interests of a firm to proceed down the litigation route.
The risks of taking a dispute to court
The general rule of litigation is that the loser pays the winner’s costs. And there is always a winner and loser in law cases. But the winner will never get all their costs back from the losing party. Whatever the outcome, the litigation route will be costly, even to the winner. Taking this road is risky for firms as the outcome is far from certain.
There is a key difference between lawyers and mediators. Lawyers want their side to win the case, but mediators want both sides to agree. Legal disputes can quickly become the most important thing in someone’s life. And if a mediator can take that burden away from them, the company is in a much better place than trying to fight it all the way to court.
An agreement is better
There is much more to business life than going to court to have your day and win a case. It can be hugely damaging to go to court and testify in front of a cross-examining barrister. It can be a stressful, fraught, and emotional experience. While a barrister going in for the kill with their cross-examination of an opposition witness can be good fun in some people’s minds, mediation can be far more rewarding for the disputing parties. And it can avoid all the stress of a high-profile court case that will likely feature in the press.
A court case could affect a business acquisition
And today’s newspapers may be tomorrow’s fish and chip paper as the saying goes, yet corporate memories tend to last longer. Imagine if you are trying to sell your business, any court case would feature in any due diligence that your buyer conducts. And if it does come up in the negotiations, there is a high probability that it could affect the sale price – yet another reason to avoid having your day in court – not a good look for a successful business to have.
Sometimes mediation is mandated
Mediation is becoming more commonplace, in part due to new Government policy. Following a recent consultation, the Ministry of Justice (MoJ) has confirmed that mediation will be compulsory for claims with a value up to £10,000. The mediation will be free of charge and cases will be referred to mediation once a defence is filed. The mediation will be an hour-long session conducted remotely. Sanctions will be imposed on those parties who do not participate in the mediation process.
The MoJ has also extended its fixed costs regime to claims worth up to £100,000. This revised approach further limits the amount that a winning party is entitled to recover from the losing party in a civil case.
Court cases are facing ever increasing delays through a shortage of both judges and funding. With these reforms, the Government is encouraging people to go down the mediation route to avoid costs but also to save time.
A dispute could become an opportunity
Flipping the argument on its head, a dispute could be a business opportunity. It is always better for a business to negotiate its way out of a tricky situation. Keeping it amicable between parties could turn adversity into an opportunity.
In good businesses, the parties will sit around a table and ask, “why are we falling out about this? Let’s think about it.” And if the other side is an external business partner, they will say, “if you think we owe you £1.5m, we will do a business deal with you for £10m where you can keep the first £1.5m.” Clever commercial directors will pivot a dispute into an opportunity that could strengthen relationships between the parties, saving time and money yet protecting or even enhancing reputation.
Dealing with the matter quickly and efficiently, will allow people to get on with the day job. It can be a real business benefit – and a boost to the firm’s profits – to prevent lawyers and personalities getting involved. After all, there is a job to be done and a whole product that needs to be made; a court case would be a distraction from this.
Keep that conversation going
The key to successful mediation is to keep a conversation going. Usually, the mediators will not get the parties together often and will avoid delving into a multitude of legal documents. The mediator will not give legal advice and they are not there to judge.
The role of the mediator is to get the conversations going to try and drill into the psychology of it. They will – through questions and conversations – seek to understand how and when the dispute arose. And to try and understand this perspective from both sides.
The right thought space
Once you have established the causes of the dispute, trust can be re-established gradually and then built on. That is when people start to say, “if we adopt this position then they will be happier. And in return, we will provide this to them.” It is when you get to this point, that the negotiation builds. And inevitably, money is always the focus of these discussions.
Getting people into the right thought space is vital to talks progressing. It can be tricky to get people to align with one another or for them to avoid wanting to go to court if they believe a judge will be on their side.
Companies often get locked into a dispute, and the case can grow exponentially without them realising. Getting companies to take a step back and think about how the dispute has grown from A to B and what has happened in between – is crucial as is avoiding any personality issues.
Mediators can help unravel the causes of the dispute and allow each party to take a breath and help to understand that the dispute is not as litigious as they think and try to resolve it without recourse to lawyers and courts.
A successful outcome can bring a real sense of satisfaction. If you can get somebody to do a deal rather than to go to court, it not only gives us mediators an amazing sense of achievement, but more importantly, it will give you and your business satisfaction and reward too.
The benefits of co-mediation
For one mediator to achieve this result is a big ask. It can be challenging for one mediator to bring two parties together. This is where co-mediation comes in – and where Integrity Conflict Solutions can help your business.
Helen Grimberg and Madeleine Kelly, lawyers with 30 years of experience, specialists in conflict management, accredited mediators, and members of the Civil Mediation Council, own and run Integrity. We have one clear goal: to use our legal skills and experience to help clients manage and resolve conflict to avoid costly litigation.
Where we are different from lawyers is that we have not been involved in the dispute. And we do not take sides. This is invaluable as having just one mediator can lose the trust of a party quite easily. Co-mediation means that both interests are represented in a factual, objective manner, guiding you towards that positive conclusion.
Removing people from their natural environment
To achieve the desired outcome in co-mediation, however, you need to ditch the office and avoid sitting around the board table. Taking people out of their natural office environment into a relaxing one can be far more beneficial. In a comfortable hotel, both parties can relax and start thinking more constructively about what the dispute is about – and potential solutions too. A sofa and roaring fire will always deliver a better result than a clinical and imposing board room.
How we can help your company
We partner with businesses that recognise the importance of identifying and managing the risk of conflict from the outset. We do this by:
- Helping you identify where the risk of conflict could arise, then putting together policies and stress testing scenarios to help you prevent conflict.
- Coaching people and teams to recognise conflict and empowering them to develop open channels of communication.
- Providing an independent and confidential space where we will facilitate discussions between parties in dispute and bring a neutral presence to resolve the issues.
- Representing those who need it in your business to help them find a voice and address the issues in dispute.
- Providing independent mediation services to cases which are already in conflict to reach an amicable resolution.
Get in touch to discuss our services and let’s work towards a solution.
