Mediation is the intervention of a third party to a dispute. It has been at the epicentre of many different legal systems, such as those of the ancient Greeks, Romans, Confucians and Buddhists.
In the United Kingdom mediation has risen to prominence more recently, as a result of our more adversarial and litigious legal framework. It is a form of Alternative Dispute Resolution (ADR), which generally seeks to find a mechanism for the resolution of disputes without court adjudication.
A reliable definition of mediation can be found within the ADR Handbook as involving ‘the use of a neutral third party who seeks to facilitate what is essentially a negotiation process to resolve a dispute’.
It is important to emphasise that it is a process that relies upon the consent of all parties. If any party refuse to take part, then mediation cannot work.
Mediation is generally considered as being quicker and more cost efficient than litigation. The slow and overloaded court system means that those wanting to bring a claim to court may wait months, or even years, to resolve their dispute. If both parties are open to trying mediation as a form of ADR, parties can potentially resolve the problem in a matter of weeks. Add to this the avoidance of expensive court fees, as well as solicitor and barrister fees, and mediation becomes an attractive alternative.
It is also important to stress the interpersonal advantages of mediation. Particularly the potential to heal or preserve on-going relationships, where future communication would be needed between disputants. If a dispute reaches court adjudication then there will be a winner and a loser. However, in reality both parties are losing as the underlying relationship is the root cause of the problem, and they may have to live with each other for many years going forward.
All parties must be willing to compromise in order to reach a solution. In doing so, mediation has the potential to reduce hostility, making communication between parties less adversarial and more amicable.A large majority of respondents cited that client input and involvement in the mediation process, could have a very positive impact. This was opposed to court proceedings where unfavourable decisions impacting both parties, may be delivered. Instead, allowing the parties to choose their own process, gave them the opportunity to recognise mutual interests and avoid the risk of an unhelpful court judgement.
Additionally, mediation offers the aggrieved party the opportunity to receive an apology. Something said to be impossible to get from ‘the mouth of a judge’.