FRANCESCA BAUTISTA-KOLENIC LLB, LLM, SAC Dip., MCIArb
WHAT IS MEDIATION?
Mediation is a process of resolving a dispute with the use of an experienced, neutral third-party intermediary in a confidential and voluntary manner. It is an efficient and cost effective alternative to litigation which allows the parties to air their concerns and arrive at a mutually beneficial resolution.
The amount of time spent on mediation depends entirely on how long it takes for the parties to reach an agreement or terminate the process. There are no stringent rules as to certain time limits or deadlines such as those found in litigation. The parties have the added option of choosing any mediator that is available when they desire for the mediation to take place, whereas in litigation, a case is allocated once a Judge is available, which could lead to further delays if one is not obtainable for a lengthy period of time.
Mediation can be substantially less costly than the court system, as there are no court fees. If the parties choose not represented by lawyers there are few/no legal fees and the sooner a settlement can be reached the less expensive the mediation would be.
As mediation is a voluntary process, both parties must agree to proceed in this manner. When both parties willingly enter mediation they will generally be open to the idea of coming to a settlement (even if it is only to avoid a lengthy/costly litigation). This voluntary nature of the process can be very attractive in civil disputes where the parties wish to retain a working relationship, as mediation is substantially more amicable than litigation.
The informal nature of the mediation process results in two benefits. Firstly, it allows the parties to feel more comfortable and relaxed which in turn allows for a constructive atmosphere where the parties can be more open to state their issues and vent their frustrations directly to the mediator. Secondly, the relaxed nature of the process allows parties to adopt a constructive attitude and become more open to settling the matter and considering offers made by each party
Confidentiality can be a very attractive feature to parties opting to enter into mediation. The court process is a public forum where (unless special circumstance requires it) personal and
professional matters can become public knowledge. Some people/companies prefer to have their issues, practices and/or conduct kept out of the public eye. This can be particularly important for those who depend on their reputation as part of their business or individuals/institutions in the public eye.
Decisions reached in mediation would have to be mutually acceptable. Mediation allows for the control of the outcome to be placed in the hands of the disputing parties rather than in the
hands of a judge or jury. This aspect of the mediation process is very attractive as the parties can decide on any solution they so wish (i.e. much more flexible than the judicial system).
IMPACT ON EUROPE
There has been a large impact to the UK as well as other European States to increase and promote the number of mediations taking place, a notable change has been seen in the amount of cases presented to the courts.
“According to a recent EU funded study, the time wasted by not using mediation (based on a claim of €200,000) is estimated at an average of between 331 and 446 extra days in the EU, with extra legal costs ranging from €12,471 to €13,738 per case. In England and Wales, the position is similar. In March 2011 the English Ministry of Justice noted in its consultation paper that:-
‘Last year, more than three quarters of claims in the civil system were settled
after allocation but before trial that’s 87,000 more cases that could potentially have been resolved earlier if mediation had been used more widely and committedly.
ATTREE & CO, EU: the impact of the EU
mediation directive 2008/52/EC
LLB, LLM, SAC Dip., MCIArb
Barrister-of-law I Solicitor I Mediator I Commissioner-for-Oaths