Civil Mediation: Common Questions and Misconceptions

Why would I want to mediate rather than go to court?

If you have a dispute with someone, whether it’s a member of your family, someone in the course of your business or someone else entirely, you may feel that the only way to resolve that dispute is to go to court and let a judge resolve it. However, perhaps more so than ever before the courts are under strain, a combination of increasing demand for its services together with ever reducing resources means that the court system is facing its own perfect storm. The impact of this on those making use of the court system is that it can lead to a delay in those claims being dealt with, longer and longer waits for a court hearing, and in an ever increasing number of cases, last minute adjournments of final hearings that parties have been waiting months to reach.

I’m not represented but the other party is, so won’t I be disadvantaged?

If the other party is legally represented and you aren’t, you may feel that they will either try to confuse you with legal terms or pressure you in to signing something that you don’t understand or don’t agree with. That is not the case. The mediator will do their best to ensure that everyone understands what is being said, and if you are in any doubt and don’t wish to sign an agreement, then you don’t have to. Also, if you feel intimidated by being in the same room as the other party’s legal representative arrangements can be made to ensure that you are kept in separate rooms throughout the mediation.

If we don’t reach an agreement won’t it be a waste of money?

The aim of mediation is for you to reach a full agreement on all of the things you are arguing about so that it will bring the dispute to an end. However if that is not the result then mediation may well have provided other benefits. If you are arguing over a number of issues then mediation may lead to you resolving some of them and therefore making things simpler (not to mention cheaper) once you get to court. Alternatively you may get a better understanding of the other party’s position, as you will have the opportunity to discuss matters, either directly in person if you both so choose, or, in most cases, via the mediator. Another benefit is that if the other party has refused to negotiate beforehand or explain why they are sure they will win, the opportunity to ask them questions about that may cause them, or indeed you, to think more carefully about the case and perhaps be more likely to reach an agreement; it is very easy to write a letter saying you have a strong case, it can be far more difficult to explain the reasons behind that belief.

I haven’t done it before so I don’t know the process

The process is likely to be slightly different in each mediation as one of the benefits of mediation is that the process can be adapted to suit the parties and their requirements. In some instances a joint session would work best, where the parties and representatives (if any) are present in the same room, however in many cases, for numerous different reasons, the parties may not wish to be in the same room together thus only individual sessions may be used, where the parties remain in their separate rooms and the mediator shuttles between them. In most cases a mixture of single and joint sessions will be used. The process can be determined by the parties and mediator to give the best chance of an agreement being reached. The process that will be used in your particular mediation will be explained to you at the outset and the mediator will be there to assist with any specific requirements the parties may have.

Is it too late to mediate if court proceedings have already started?

Whilst it is important to consider mediation at every stage, the most appropriate time to mediate will often depend on the nature of the dispute itself. It is often helpful to try mediation before starting court proceedings, if only to avoid paying the court fee, but you mediate at any stage. In some cases it may be more appropriate to mediate after court proceedings have started as the parties have had a taste of what court (and legal fees) are like and may have a greater incentive to reach an agreement than they would have had otherwise.

If I agree to mediate won’t the other side assume my case is weak?

Agreeing to mediate doesn’t mean you are admitting that you think your case is weak. People attend mediation for a number of reasons, one of which may be that although they are certain they would win if the case went to trial, they would rather not spend the next year or more of their life going through the court process, completing paperwork, paying legal fees and taking time off work to attend court hearings. There is no obligation on you to accept anything less than you want to, but mediation gives you the chance to see if a resolution can be reached on terms that would be acceptable to all parties.

I know I’ll win at court, why should I bother mediating?

There are very few, if any instances, where a party can be certain that they will be successful at trial. Numerous issues may arise which could turn an apparently strong case into a much weaker one, for example new evidence that wasn’t previously available, or the unavailability of a crucial witness at trial to name but two. However, even if you are as sure as you can be that you will win at trial, mediation gives you the opportunity to reach a much quicker and cheaper resolution to the matter. It will also give you the opportunity to explain to the other party why you are so sure you will win, with the possible outcome that it may prompt them to consider reaching an agreement.

What can mediation achieve that a trial can’t?

If you make a claim to court, the Judges powers are relatively limited. The usual remedy provided by the court, depending of course of the nature of the dispute and the remedy being sought, is to order that an amount of money is paid, or not, depending on whether the case is successful or not. However, within reason, the agreement reached at mediation can really include anything that the parties wish it to. For example, sometimes the most important thing for a party is for the other side simply to apologise – whilst a court cannot order that to happen, it may be something that forms part of an agreement reached at mediation. Furthermore, if a dispute involves a business or family relationship for example, a trial may well cause irreparable damage to that relationship. Whilst parties often feel that due to the dispute any such relationship is already beyond repair, it may well be the case that mediation can either begin to repair some of that damage or at least perhaps not make it worse. This can also be an important consideration in neighbour disputes.

What if the other party go back on the agreement reached at mediation?

If the mediation results in an agreement being reached between the parties then this can be recorded in a court order (if proceedings have already begun) or a contract (if they have not). If the agreed court order is filed at court then that will bring an end to the proceedings and there will be an order in place that the parties can enforce, much the same as there would have been after trial, should either of them not comply with its terms. If a contract is entered into and one party does not abide by its terms then the other party may issue proceedings based on that mediation contract, such proceedings are often far simpler, and far more likely to be successful, than the original dispute which brought you to mediation in the first place.

 What are the consequences if I don’t mediate?

If one party offers mediation and the other refuses to attend and the matter proceeds to trial at court then the party who refused to mediate may be penalised when the court considers who should pay the legal costs. The starting point in legal disputes is that the losing party shall pay the winning party’s costs, or at least a significant portion of them, unless there is any reason for that not to happen. However if after trial the Judge is satisfied that the losing party offered mediation which could have resulted in an agreement and avoided the need for a trial and the successful party refused to mediate without a good reason then the Judge may order that the successful party pays the losing party’s costs, even though they won the case.

As a result of the above, it is important that if you ever consider making a claim to court, you give very careful consideration, both before and throughout the proceedings, to mediating. Whilst it may not be top of you list of things to do at that time, it may well prove to be a wise decision in the long run.

Dean Thistle is an accredited civil and commercial mediator.