“It’s good to talk”………Why Mediation in Civil Disputes should increasingly be your first resort, rather than your last.
What is Mediation?
As you may know, Mediation is a voluntary and confidential form of Alternative Dispute Resolution, under the stewardship of an independent, neutral mediator, who assists the parties in any dispute to try to achieve a negotiated settlement.
Although the parties can attend a mediation themselves, (ordinarily on neutral territory) they are usually accompanied by their lawyers, who can provide both advice on the legalities and pragmatic advice as to the implications of any suggested settlement.
If you are involved in a civil dispute, or wish to seek advice before engaging in the process including the likelihood of mediation, please do not hesitate to get in touch with one of our experienced Litigation team members. We will be happy to assist with all aspects of the litigation process.
We provide an efficient, friendly and sensitive service. You can call one of our offices in Ashford, Cranbrook or Hythe. You can also use our contact form to request a call back, in which case one of our solicitors or lawyers will be in touch shortly.
What are the benefits of Mediation?
Mediation can be used to resolve almost all types of civil dispute, including debt matters, commercial disputes, boundary issues, wills and probate disputes, or personal injury claims to name a few.
Going to trial in any civil dispute can be a time consuming, costly and stressful process. Often the parties feel they do not have control over the trial process and are instead in the hands of a Judge, who may or may not prefer that party’s evidence.
Mediation in contrast to this, is invariably quicker, costs less and allows you to take control – as you will only reach a settlement by agreement rather than a Judge imposing their decision upon you.
An additional advantage can be the fact matters are dealt with privately, as opposed to being in open court, which potentially can be a very public process.
What are my chances of reaching a settlement?
The Mediation Process is subject to the governance of the Civil Mediation Counsel. The 2023 Tenth Report prepared by CEDR (The Centre for Effective Dispute Resolution) found that 17,000 mediations took place that year – rising from 12,000 in 2018. These figures will only continue to rise as the Court Service and Judges seek to compel more parties to engage in the process. In default as discussed subsequently in the article, there can increasingly be costs repercussions, for any party failing to engage in the process voluntarily.
It was reported that the percentage of cases settling on the day of the mediation has remained at around 72%, with a further 20% settling shortly after the mediation appointment itself. A very convincing 92% of all cases who engage in the process.
Interestingly in instances where an advanced Mediator’s services were retained – the rate of settlement on the mediation date itself increases to 85% of all cases.
Those statistics are a fairly compelling argument to engage in the Mediation process, should you find yourself involved in a civil dispute.
Are any Mediated Settlements binding?
An agreement documenting the settlement reached by the parties is signed and constitutes a binding contract. If court proceedings are already underway, a Court Order can be secured, recording the agreement terms in a form of ‘Consent Order’ or ‘Tomlin Order’. Should a party then fail to comply with the terms of the agreement/order, enforcement action can flow in the normal way.
How much does Mediation Cost?
The process can be surprisingly cost effective. For example, the County Court Money Claims Centre operates a free 1 hour telephone mediation service for any money claims of up to £10,000 in value. What was a pilot scheme has now been rolled out to all courts in England and Wales.
It cannot be ruled out that mandatory mediation in money claims up to £50,000 in value will eventually be ushered in – which a cynic may say will at least assist in clearing trial backlogs emanating from the Covid era.
Other accredited providers operate fixed fee schemes for example, providing a mediator for claims between a value of £15,000 to £50,000 at a fee of £445 + vat. It can all depend on the complexity of the case and the extent to which your legal advisor is involved. As a rule of thumb including preparation time and the period immediately after the mediation process around 14-16 hours of time can be incurred. This still however compares favourably in proceeding to a 1-2 day trial with each party incurring costs of £10,000 - £30,000 with no guarantee of outcome. We will of course be able to advise on your particular case at the appropriate time.
What are the consequences should you fail to engage in Mediation?
The recent case of Conway -v- Conway & Meek reinforces the fact that the judiciary are increasingly seeking to compel parties to engage in the mediation process. In this instance despite the Defendants’ defence wholly being successful at trial, the Judge considered that the refusal to consider mediation, could not be allowed to pass without consequence – namely costs sanctions.
His Honour Judge Mithani KC, sitting at Nuneaton County Court, dismissed the Claimant’s property dispute claim. He stated however that it “seriously concerns me” why the Defendants have refused to engage in mediation and invited them to “advance compelling reasons why the offer of mediation was rejected out of hand”. The judge was not satisfied with the response given – especially as the mediation proposals were made both before and during the litigation process and indeed after the first day of an 8 day trial. HHJ Mithani accordingly applied a 25% reduction to the costs the Defendants could recover from the Claimant. (The Claimant had cheekily perhaps invited the Judge to disallow 100% of the Defendants’ costs as being the appropriate sanction).
The Judge took the view that it was simply absurd to dismiss the notion of Mediation out of hand, as there was a possibility that an agreement could have been brokered. It had been the Defendants’ position that the action was doomed to fail and the mediation process would therefore serve no purpose.
This decision seems to be following the same trajectory as the Court of Appeal decision last year in the case of Churchill v Merthyr Tydfil County Borough Council. It was held that the courts can order parties to engage in alternative dispute resolution, or stay proceedings to enable them to engage in those processes. This decision prompted the Civil Procedure Rules Committee to engage in a consultation exercise, concluding that the court must consider whether to order parties to engage in ADR and in the event of a failure to do so, impose adverse cost consequences – regardless of the outcome at trial.
Lessons to be learnt?
Even if you consider you will win your claim hands down at trial, it is increasingly important that you engage in the ADR process. Any apparent refusal to do so – regardless of outcome will on the face of it result in costs sanctions being applied.
Taking into account that it is reported over 90% of actions are settled at mediation, or shortly after it, parties should have an increasing appetite to engage. Why take the risk not to?
Contact us.
If you are involved in any form of dispute our experienced Litigation team members are on hand to support you through any difficulties you are facing. To discuss how we can help, please contact your local Kingsfords office in Ashford, Cranbrook or Hythe. Alternatively, you can send an enquiry and a member of our team will get back to you promptly, by calling us on 01233 665544 or emailing via dbc@kingsfords.net. If you want to see how much resolving the dispute might cost, we can provide an estimate with no obligations.