What are the advantages of mediation?
A court case can take months and even years to bring a dispute to an end. And the process can become very costly to both parties, adding to frustration and making relations even worse. Mediation can be a swifter and less expensive way of sorting out issues. Private and confidential, it can bring to the table matters the parties may prefer to keep away from the courts. Within an informal setting the parties can enter into a dialogue, exchanging views in a comfortable and less stressful environment.
Are there drawbacks to mediation?
If a dispute is destined for the courts then mediation can delay matters. Even then it can serve to clarify issues which may not have become apparent until later on in the court process.
What is the role and background of the mediator?
Mediators are impartial and neutral. They are not present to sit in judgment and impose a solution or outcome on the parties. All Mediators should have undergone training and should be accredited by a recognised body. They may well be solicitors, barristers, surveyors or accountants and familiar with residential landlord and tenant issues. They should be covered by liability insurance. Empathy, flexibility, patience and considerable listening skills are important abilities for a mediator to have. The ability to look below the surface of the facts and issues to detect and understand the parties’ needs and interests is also important.
What outcome could I achieve with mediation which could not be obtained through litigation?
A satisfactory mediation outcome is designed to be a win-win situation, it could be recognition of what led to the disputed behaviour and steps put in place to reduce the chances of it happening again. For example, a landlord may be given an apology and systems created to nip in the bud warning signs of future problems.
Do I need professional representation for mediation?
Mediation is designed to reduce costs and professional representatives should only be engaged where really necessary. It may be wise to seek legal advice where specialist input is needed in advance of a session. An example is the interpretation of a particular contract clause; another might be: who is liable for the roof or windows in a building where the scope and costs of their repair is in issue? Surveyors and structural engineers may also need to be consulted where the mediation will involve arguments over schedules of dilapidations and costings.
Are there occasions when mediation is not appropriate?
It may not be appropriate where there are issues of fraud or where a legal precedent needs to be set.
How is a typical mediation session structured?
Mediation is a consensual process. A session will not take place unless and until both parties agree to it. The mediator will open the session by explaining the procedure and ground rules which govern the etiquette and conduct of the parties. The mediator will meet each party first and give them a chance to summarise the issues from their own perspective so that the mediator can fully understand their concerns. The parties will then enter into a joint session. Each will be invited to present their views of the dispute, uninterrupted by the other: the mediator will summarise the issues and then encourage both sides to come up with possible, mutually acceptable, solutions. The intention of the joint session is to have a structured discussion, ensuring each person listens to and understands the other’s viewpoint, and actively attempts to resolve the dispute. Where agreement is reached, the mediator will help the parties to draw up an agreement to be signed by them. The mediator will destroy any notes they have made at the conclusion of the session. Where agreement is not possible, either or both parties are free to initiate or continue with Tribunal or court action but cannot call the mediator to give evidence.
Are there penalties if a party turns down mediation?
Think carefully before you refuse an offer of mediation. Court rules provide that, in considering costs, the court must have regard to the conduct of the parties and, in particular, the efforts made, if any, before and during the proceedings in order to try to resolve the dispute. A successful party at court is therefore open to paying their own costs should they fail to agree to mediation without good reason. You are encouraged to take professional advice if you are thinking of turning down an offer of mediation.