Covid-19 restrictions have hit the Courts in Northern Ireland severely. Hearings have been greatly restricted since March and there is no sign of when things might return to normal, nor any significant use of remote hearings. There is already a backlog of several months of cases now unheard and this may yet get significantly worse, writes Philip Gordon at Edwards & Company Solicitors. What then can you do if your business has a dispute which needs resolved? A swift and cheap solution is always the desire, but with the Courts likely to be very slow, what is the alternative? One option which is increasingly popular is mediation.
What is mediation?
Mediation involves a neutral mediator working with the parties to explore possible solutions. The mediator does not judge who is right or wrong, but talks to the parties and helps them to identify what might work. The mediator and the parties look to find a solution to the dispute which both sides might find acceptable.
What are the advantages?
Mediation allows parties to set out their case in a confidential, “without prejudice” environment. It can be arranged quickly (perhaps within weeks) and can offer significant costs savings as compared to taking a case to a hearing. Any settlement is binding and can be as simple or complex as the parties desire. In allowing for an agreed settlement, mediation can preserve a working relationship.
It can also be a lot cheaper than taking matters to court – a 2018 audit from CEDR (the Centre for Effective Dispute Resolution) found that using mediation rather than going to court saves UK businesses approximately £3 billion a year.
What if I really don’t like the other party?
Some people are reluctant to mediate because the relationship with the other party is poor and there is a lack of trust. This is however exactly when a mediation can be particularly helpful. Communicating through a neutral mediator allows both sides to set out their side of things robustly, without temperatures rising out of control. Often an agreeable way forward can be found which might not have been possible in direct discussions.
What if it doesn’t work?
If no agreement is reached, litigation can commence or continue. All discussions are confidential and without prejudice and cannot be used against you if and when a case reaches a hearing. Even if a mediation does not lead to agreement, it can narrow issues or otherwise focus a case and save unnecessary time and costs.
What if I’m confident of winning?
If you feel that your case is particularly strong, that may be reflected in being able to strike a good deal. Even if you feel that your case is bullet-proof (and your solicitor will almost certainly not be so bullish) a mediation offers a solution now rather than the promise of a solution a long way off. The Court can also take a dim view of parties who refuse to engage in mediation or alternative dispute resolution when it comes to costs.
Can a mediation take place remotely?
Yes, mediation can take place via secure videolink if parties would prefer not to meet in person because of Covid-19.
How do I arrange a mediation?
If the other party is willing to take part in a mediation, you can either agree a mediator with them or agree for one to be appointed by a body such as the Law Society. The mediator will outline what he needs in relation to the case and provide a short mediation contract setting out the responsibilities of the parties. The mediation can usually take place within a few weeks.
If you have any queries about mediation for business disputes, please contact Philip Gordon at Edwards & Company at [email protected] Philip is an experienced litigator and a qualified mediator with many years’ experience in resolving business disputes.
