LAW
Tilly Bailey & Irvine dispute resolution partner Nigel Broadbent says mediation opens doors to outcomes outside the limited range of decisions a court can make.
Mediation vs litigation:
which way to resolve a dispute?
When a disagreement becomes a dispute, people sometimes assume it will inevitably end up in a trial in court. But that doesn’ t have to be the case.
Mediation, one of several processes known together as alternative dispute resolution( ADR), can offer a quicker and less stressful way to achieve a settlement. Many people are now turning to mediation to resolve conflicts cost-effectively and without the uncertainties of litigation.
The Commercial Dispute Resolution team of Tilly Bailey & Irvine Solicitors, based at Wynyard, has a wealth of experience in helping clients to achieve the outcomes they need.
They represent clients including individuals, SMEs, owner-managed businesses, blue chip companies and everything in between. The flexibility of mediation means its popularity in resolving cases that would otherwise go to trial is ever increasing.
What is mediation? Mediation is a voluntary, flexible process in which a neutral, independent person helps the parties agree the terms of a mutually acceptable resolution of their dispute.
The mediator does not take sides, pass judgment or decide who is right or wrong, but guides the discussions, helps to clarify issues and encourages the parties to compromise.
Nigel Broadbent, a commercial dispute resolution partner and an accredited mediator for nearly 20 years, highlights the flexibility of the mediation process, which enables parties to air their grievances in a confidential environment where they can speak freely, without fear of what is said being repeated outside the mediation
process, which is probably the single biggest factor in mediation’ s success.
“ There are very few rules of mediation,” says Nigel.“ But there are a couple, and they are important.
“ Mediation is completely confidential. The parties sign an agreement that everything that happens in the mediation is in total confidence and cannot be disclosed to anyone outside the mediation.
“ It is also without prejudice, meaning it’ s privileged from disclosure in any litigation. This allows the parties the freedom to apply a different mindset from that which they have to adopt when fighting a case in the open.
“ They can explore their different views of the points they are in dispute about and consider wider issues, such as the impact of a dispute on the business they are trying to protect or the relationships that matter to them.
“ A skilled mediator will help the parties to think about the‘ big picture’, which often opens doors to outcomes that are not within the range of things a court could order.
“ It could be something as simple as an apology that unlocks a settlement. A court doesn’ t have the power to order someone to apologise. It can order damages to be paid, and it can impose injunctions and other remedies. But it’ s a limited palette.“ There are practical benefits for the court system in reducing its workload. But the benefits are felt directly by parties involved.
“ Whatever the nature of a dispute, or the size of their business, clients always need to balance the costs and risks against the benefits.
“ Mediation enables them to plan resolution strategies. We always consider this at the earliest stages because we know from long experience that our clients’ interests are best served by getting the right advice and devising a strategy that is appropriate for their particular circumstances.
“ Sometimes it is necessary to litigate and consider ADR during the court proceedings. Whatever the stage at which ADR in general, and mediation in particular, takes place, the benefits of engaging with it are usually very apparent.
“ Mediation can help preserve relationships between business partners, neighbours or even friends and family members.
“ It can preserve the possibility of parties moving forward without the hostility that court proceedings can create.”
How Tilly Bailey & Irvine can help Dispute resolution partners Nigel Broadbent and Alison Leith have more than 60 years of litigation and ADR experience between them and are supported by a team of dedicated litigation lawyers.
To find out more or to speak with Nigel or Alison, please contact Tilly Bailey & Irvine LLP on 01740 646000 or visit tbilaw. co. uk
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