A dispute can happen for a number of reasons, whether it’s a breakdown in communication, a breach of contract or a financial dispute; disputes are part of daily life. In the past litigation has been the traditional route which is expensive, drawn out and stressful, and everyone (even lawyers) recognise that the outcome cannot be guaranteed.
If you actually reach a trial in litigation each party usually believes they are right and will benefit from the trial. If not then some other means of compromise would have happened, whether that is arbitration or some sort of settlement offer. At best only one party is right, but given the risk of legal costs both parties could lose out.
Mediation in contrast can be faster, cheaper and provide better results than litigation if the parties are willing to talk and resolve the issues together. That magic word compromise. The ability to communicate through mediation results in lower costs, quicker resolutions and better solutions that reflect what the parties want.
Why? Because it is the parties who have control of the situation the outcome is not left to a Court to provide a resolution which may not accurately reflect the full circumstances of the events.
THE PROS AND CONS:
MEDIATION
- TIME - Shorter Time to Resolution: Parties can work outside of court timelines, and get a solution as fast as they can resolve their differences. Mediation is usually arranged within 2 – 4 weeks of contacting the Mediator and lasts for 1 day
- CONFIDENTIALITY - Private: Communications are confidential and privileged.
- FORMAT - Informal Process: Rules are flexible and based on effective functioning such honesty, courtesy and civility. Making the process informal and less stressful.
- FLEXIBILITY - More Flexibility: Parties know details of the circumstances and with help of the mediator find a solution that both parties can agree on.
- DECISION - Parties decide and agree on the solution which is drafted into a settlement agreement.
- COSTS - Cheaper: Most mediations are dealt with on a fixed fee basis so the parties will know the costs before they begin the process
LITIGATION
- TIME - Process Not Fast: Time and Process to Trial can take months or years to reaching a final trial date. Formality of the litigation process requires time and can have delays.
- CONFIDENTIALITY - Public: Trials may be reported and therefore a public record made.
- FORMAT - Formal Process: Rules of evidence apply; these control what may be said and who can and cannot speak, when and what and how documents may be used.
- FLEXIBILITY - Less Flexibility: The Court are restricted by case law and statutes.
- DECISION - A Judge applies law and personal judgment to impose an outcome.
- COSTS - Expensive: Court fees and mounting legal costs.
BIO
Sara Robertson set up WR Legal Consultants Ltd in July 2014 after working in Litigation, in private practice for over 14 years. WR Legal has worked with a number of firms nationally to offer support and advice. Today the firm are focusing on the importance of Mediation and offering a high quality effective service across the community.
Sara decided to retrain as a Mediator following the reform of Court fees in 2015 feeling that litigation was no longer an option for most clients. Sara comments” the increased court fees made the risks involved with litigation much higher, the changes were made following a consultation aimed at easing the burden on the court system. It just seemed to increase fees and delays of the whole process. With another 80 plus courts due to close over the next 18 months people need to consider the alternative to litigation and mediation is a great solution, particularly with 80% of mediations settling
