Robert Rhodes QC explains why mediation is often the best way to resolve disputes for direct access business and individual clients.
The most common form of mediation is when two or more parties with an apparently intractable dispute agree to appoint an independent third party as mediator to try to reach a settlement between them. The overwhelming majority of cases are suitable for mediation, no matter how wide apart the parties appear to be. A skilled mediator can help most parties find an acceptable solution to their problem.
The fundamental point to bear in mind is that it is not a question of who is right and who is wrong. Nor is it a matter of simply splitting the difference (although this can transpire to be the solution). Each party has to ask himself: can I live with a negotiated settlement? If he cannot, then he should continue with his litigation. But before he does, he should consider the following:
Cost and speed. Mediation is much cheaper than litigation. In one or two days you settle the problem, as opposed to having to wait for several months for a trial, while racking up enormous bills (only part of which you will get back if you win). You will be able to get on with growing your business rather than having the distraction of litigation.
Practicality. What if you lose your case in litigation? Apart from your own costs, you will almost certainly have to pay a high percentage of your opponent’s costs. In addition, even if you win, your opponent might appeal, which will cause substantial further delay. Moreover, it is one thing getting a judgment, but it can be quite another enforcing it, resulting in further cost and delay.
How important is your relationship with your opponent? If you wish to continue that relationship, for example buying from or selling to each other, it will be much easier to do so if you mediate your dispute rather than have lawyers on either side calling the other party liars.
Confidentiality. Litigation is open to the public and can be reported. Mediation is confidential. It may well be undesirable to have your commercial disputes viewed by the public, eg your competitors.
I have managed in the course of a very long day to mediate seemingly intractable disputes where the parties had a week booked in the High Court. The courts appreciate the potential helpfulness of mediation in virtually all cases, and will usually penalise the winning party in costs if that party has refused his opponent’s offer to mediate.
In summary, my advice to virtually any litigant would be to try mediation. People are often surprised at how successful the process can be.
Robert Rhodes is a leading QC who specialises in business crime (e.g. civil and criminal fraud, tax investigations, bribery and money laundering), financial services, regulatory and disciplinary work, and mediation and arbitration (both as counsel and mediator/arbitrator).