Services - Mediation
Over recent years, Gemini Solutions has enhanced its mediation practice to ensure that all clients who face contentious situations have available to them a complete range of dispute resolution options. Mediation as a form of dispute resolution is proving itself to be especially effective – in terms of whether the parties’ agreement “sticks” and in terms of costs – in circumstances in which the parties wish to preserve their commercial relationship after the particular dispute is resolved. This briefing sets out the key principles of mediation and the benefits of this mode of dispute resolution, and considers the circumstances in which it typically will be useful.
Mediation is a private, confidential and without-prejudice process in which the parties to a dispute, with the assistance of a neutral mediator, address the contentious issues that they face and work towards developing an agreed resolution of the dispute. In that way, each side has “ownership” of the dispute and of the agreement by which it is to be resolved. The trained mediator is a critical element of the process: apart from managing the process, the mediator brings skills and experience as a facilitator and problem-solver.
In mediation the parties themselves formulate the resolution rather than it being imposed upon them by a third party such as a judge or an arbitrator. While litigation has a winner and a loser, mediation is different: to arrive at a resolution, every party to a mediation has some “wins” and some “losses”. Critically, however, each party must be content with the balance overall so that it can subscribe to what it accepts is a fair result.
The mediation process is confidential to the parties and, in a mediation, nothing is agreed until everything is agreed: the discussions in mediation are “without prejudice”. If a mediation fails and litigation follows, the parties to the mediation may not raise in court any matter that was revealed by any other party exclusively in the mediation. Further, documents prepared for the purposes of mediation will be privileged and so protected from disclosure in any subsequent discovery process.
The Advantages of Mediation
The principal advantages of mediation include its low cost, its low visibility, the confidentiality and flexibility of the process, and the fact that the parties themselves remain in complete control of the process and its outcome. Significantly in some cases, mediation offers the parties the opportunity to formulate an outcome that a court could not impose, thus facilitating novel and commercially-focused settlement agreements.
There is anecdotal evidence that a familiarity with the processes and rationales that underly mediation fosters in an organisation a greater awareness of the interests and needs of others who share the organisation’s commercial landscape. Stemming from that, there are indications that, in an intangible sense, the use of mediation helps in the earlier identification and detection of potential disputes and in preventing matters escalating to a full-blown dispute.
What of the person whose positioning law and in fact is very strong and, where assessed objectively, might be thought likely to win all points in litigation and to be awarded full costs? A perceived disadvantage of mediation can be that such a person must inevitable concede some points in order to secure an agreement on the dispute. However, even in such a scenario, mediation has a potential value, particularly if the stakes are high: an agreed resolution, if achievable, buys off the litigation risk and can potentially save costs and management time.
