MEDIATE – DON’T LITIGATE!

A dispute with a customer or supplier can quickly become acrimonious; trust is broken, a business relationship may be ended.  Even if the rift is not irrevocable, the relationship is rarely as strong as it was.  Reputations can suffer, both within one’s industry and with customers and potential customers – social media is a powerful influence.

If the dispute appears intractable, then you think of contacting your solicitor – someone who will fight your corner, win your case, get you recompense.  Except life isn’t like that. The case takes up more and more of your time and money but your solicitor reassures you that “we have a good case, the barrister thinks we should win”.  Sometimes an offer in settlement is made.  You think (or your solicitor advises) that you can do better, so you reject it and perhaps make a counter offer, which the other party also rejects.  As the court date approaches, confidence wanes – “let’s hope the judge believes you” and warnings are given – “be firm during cross-examination, don’t get rattled”.

Then the day arrives – at court your confidence drains away as the risks of perhaps not winning and being liable for the other side’s costs are pointed out to you by your barrister.  So negotiations in hushed tones take place between your barrister and your opponent’s barrister.  A settlement might be reached before the trial. Or you might win – or indeed lose – at trial.

But was it all worth it?  The months of anxiety, the money, the time it has taken up?  From a commercial point of view, how much have you gained?  Legal expenses insurance, if you have it, obviously reduces the financial burden but not the amount of time you have devoted to the case.  And if the worst comes to the worst and you lose, or are only partially successful, you are angry at the injustice of the result, the cost to you  and the possible reputational damage.

Is there an alternative?  There is. Mediation.  Mediation is a voluntary process during which a mediator, a qualified neutral professional, meets separately with each party (and their solicitor, if the party has one) to discuss the dispute in confidence and the sort of resolution each party would like to achieve.  As the parties are in separate rooms, the mediator shuttles between the rooms exploring with the parties ways in which the dispute could be resolved.  The mediator does not decide who is right and who is wrong; the mediator helps the parties reach an agreement which enables a line to be drawn under the dispute.  The settlement will probably be less than each perhaps hoped for but it will be an agreement that both of them can live with and which is binding on both parties.

What does it cost?  Typically, much less than litigation (you do not even need a solicitor). In 2015 the government substantially increased the fees payable to start proceedings: the fee for a claim of £80,000 rose from £910 to £4,000 and for a claim for £150,000 it rose from £1,115 to £7,500. And  further fee increases were introduced  last year. In addition there are your solicitor’s costs for preparing the case.  So rather than subject yourself to the vagaries of litigation, where it is the judge who will decide the “winner”, why not consider mediation? Mediation enables you to stay in control of your case, for it is you (and not the judge) who decides the outcome and at far less cost.

Mark Field is an experienced commercial mediator, based in Preston (who works throughout the UK). Contact him, without obligation, at [email protected] or 07866 676464, if you have a dispute that you think would benefit from mediation.

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