FAQs

What is alternative dispute resolution?
For a long time those helping resolve disputes had been looking for an alternative to litigation through the courts. For some time Arbitration, a form of private litigation, seemed to offer benefits of speed and lower cost but it has been found to have many of the disadvantages of going to court. Commerce and industry became increasingly concerned about the high cost and delay of litigation and arbitration and actively sought other ways to resolve disputes. These other methods are described as "Alternative Dispute Resolution" or more commonly "ADR".

ADR covers a variety of dispute resolution techniques including Mini-Trials (Executive Tribunal), Med-Arb, and Evaluation but the process which has been found to be of the widest application is Facilitive Mediation (usually just called Mediation), where a Mediator acts as a neutral facilitator to bring the parties to their resolution of their disputes.

Mediation is a well tried, tested and cost effective dispute resolution process and is now widely recommended by the legal and commercial establishment, because it is cost effective, quick and most importantly it works!


What is mediation?
Mediation involves a trained neutral Mediator using his/her skills to bring protagonists to their resolution of their disputes. Although achieving results in this way may seem to be unlikely the process is in fact highly effective with a very high success rate.  it has been successful in many high profile and very contentious matters.

Mediation is fundamentally different to litigation or arbitration where a third party, the judge or arbitrator, makes a binding decision and tells the parties the answer the dispute.  In mediation the mediator is a facilitator rather than a decision maker.


Mediation -v- litigation - what is the difference?
In traditional litigation a judge or arbitrator hears evidence and then makes a decision which is binding on the parties. At best only one party will be satisfied with this judgement and very often neither will like the outcome. In Mediation the Mediator does not act as a judge or advisor but acts as a neutral facilitator to manage the mediation process and bring the disputants to their resolution of their dispute. The final outcome of a successful Mediation is a written and binding agreement signed by the parties.

The other substantial differences between Mediation and litigation are those of time and cost. Litigation is infamously lengthy and costly, few people who use it feel it is a satisfactory way of resolving many disputes and it is often actively disliked. Mediation on the other hand can be set up and concluded quickly and most users of Mediation feel that it provides very good value for money, particularly those who have previously been through litigation.

Mediation and litigation are not necessarily incompatible. On very many occasions Mediation is used during litigation to settle a case before it goes to trial and substantial costs are incurred.   This often when the parties are beginning to look for ways to get off the costly litigation treadmill and are beginning to realise that things may not be as simple as was originally thought. Because mediation takes place on a "without prejudice" basis nothing can be lost by using it.

Mediation is not however a panacea or suitable for resolving all disputes. It is unsuitable where a court declaration is required in a test case, or where an injunction is required to prevent illegal actions or to protect assets.

Also, because it is essentially a consensual process both sides need to agree to use mediation.   This agreement can arise from a contractual requirement to use Mediation to resolve a dispute or more often it will take the form of an Agreement to Mediate a dispute. However where the other party will not enter into discussions, or refuses to acknowledge that there is a problem.
litigation is often the only way for a party to kick start the resolution of a dispute

What is the history of mediation?
The involvement of a neutral third party to act as a go-between in a dispute is as old as history, and it has often been used successfully in the political arena - "shuttle diplomacy" in the Middle East has been a particularly high profile example of this.

The development of a formalised process for resolving disputes in commercial matters has its roots in USA over the last 20 years. The impetus in America was the infamously high cost of American litigation and the desire of businesses to retain relationships rather than destroy them. From this grew ADR, particularly in the form of Mediation. A substantial number of Fortune 500 companies have adopted the extensive use of Mediation as a first resort, rather than launching straight into litigation of their disputes. Because of the success of Mediation in USA the process started to be used in UK about 10/15 years ago and it has ever since been going from strength to strength.

Mediation is now well established in UK as a tried, tested and cost effective method of dispute resolution with, in many cases, substantial advantages over traditional judicial processes. This has been recognised by the UK Government and there is now substantial pressure for the increased use of Mediation instead of conventional litigation.  This pressure comes from Rules of Court and judicial decisions which require parties involved in litigation to consider the use of Mediation during court proceedings.   Courts routinely makeorders that cases will not be set down for trial until Mediation has been attempted. Behind all these changes is the recognition that Mediation will, in very many cases, offer better value than continuing litigation.


What are the benefits of mediation?

• it's your process
• a Mediator manages the process
• less delay
• prompt resolution of dispute
• confidential
• "without prejudice"
• your solution, not that of a third party
• a creative approach
• tried, tested and cost effective
• high probability of success
• Existing relationships can be maintained
• Legally binding outcome

Is mediation expensive?
You should not expect Mediation to be a cheap alternative way to resolve disputes. It is not necessarily cheaper than litigation but very often this is so. It is our experience that people who have used Mediation almost without exception consider that it provided excellent value for money. The reasons for this include the facts that Mediation can be set up quickly when the time is right, it can deal with all issues and can retain important business and personal relationships between the parties. These allow everything to be sorted out and for the parties to get on with their life with the dispute behind them. Litigation can often only deal with some of the issues and leave other unresolved.

If you would like to discuss the economics of using Mediation to resolve a particular dispute please contact us.


What is the mediation process?
There are no fixed rules governing a Mediation and a skilled Mediator will be extremely flexible in his/her approach to the individual circumstances of each dispute. However many Mediations will take place along the following lines:

• Setting up the Mediation — The Mediator will help bring the parties to Mediation by liaising with them or their representatives, helping to draft any necessary Agreement to Mediate, making administrative arrangements, organising a suitable venue, etc.
• Information — Prior to the Mediation each party will usually provide a brief written resumé of their view of the dispute to the Mediator, and if so agreed to the other side.
• Mediation meeting — The parties, and any representatives or advisers, come together with the Mediator at the agreed venue. The Mediator will start with an opening explanation of the Mediation process and its features, in particular it will be explained that the process is voluntary and that anyone can step out of it at any time. Also that it is "without prejudice" and that what is said during the Mediation cannot be referred to if the process fails and litigation takes place.
  
  Each side will usually then in the presence of the other party and the Mediator give a brief statement about the dispute and their approach to it, summarising their claims or response to claims. The Mediator may then ask questions and there may be rebuttal statements by the parties. A discussion sometimes takes place at this stage to clarify any particular points which have come up in the presentations.
• Private meetings — After the opening session the parties will usually go into separate rooms with their representatives/advisers and the Mediator will meet each party in turn in private and will then continue to shuttle to and fro between the parties. Anything said to the Mediator in the private meetings will be treated as confidential by the Mediator and he/she will only disclose information to the other party with the consent of the party giving the information. This is the time when the Mediator starts to explore the dispute and start looking for ways to help bring the parties to a resolution, and these private meetings are really the power at the heart of the process.
  
  The Mediator gives no advice and makes no judgements or decisions for the parties. If advice is needed on technical, legal or other matters the parties should have their advisers with them or have access to them.
  
  In caucus a skilled mediator will ask probing questions, test assumptions, play "devil's advocate" and float ideas which might break deadlocks, create and develop settlement options, clarify issues and interests, or match options to the commercial interests and relationships of the parties. It is by these techniques and the assistance of the Mediator that the parties are step by step brought to their solution to the dispute.
• The final binding agreement — Usually after a great deal of toing and froing an agreement is reached resolving the dispute. It is then a fundamental and vital feature of Mediation that this is put in writing and signed by all parties to make it contractually binding. It is this final process that gives Mediation a hard practical edge and makes the settlement deal enforceable. In practice because the parties have been intimately involved in formulating the settlement agreement this is rarely necessary. Producing the written agreement is usually done collaboratively by the parties and their advisers with assistance from the mediator if necessary.

What sort of dispute can be resolved by Mediation?
Our Civil and Commercial Mediation Service can help resolve almost any type of civil or commercial dispute. Below is a non exhaustive list of disputes where its use would be appropriate:

In these Frequently Asked Questions we are only dealing with Civil and Commercial Mediation, but we also provide a Family Mediation Service which deals with divorce, separation, financial and children issues arising from the breakdown of relationships.


How can Mediation help me?

What if I cannot persuade the other side to mediate?
This is often a problem. There are a variety of reasons given by parties and their lawyers as to why Mediation is inappropriate - although these are often for sound reasons it can also be because of ignorance or fear of the process. We are used to this and have plenty of experience of it.

Sometimes the hurdles may be insuperable.   If we cannot help we are members of organisations who can, at a price, assist in this situation and "sell" the process to the other side. It can often be surprisingly difficult to get people around the table to mediate. Logic often has little to do with the situation!


What type of mediator?
As the Mediator does not act as an adviser to, or make decisions, for the parties it is his/her skills as a Mediator that you need. It is our experience that technical expertise in the subject matter of the dispute is rarely necessary. What you need is a robust, and practical approach to problem solving coupled with a commercial approach, sense of humour, resilience and lateral thinking.

Particularly when litigation has started it can be useful for the Mediator to have a good understanding of litigation and the court process. This enables the Mediator to challenge assumptions and put the dispute into the context of what will happen if a resolution is not found through mediation, and the matter ends up at trial in court.


What is Raworths' experience of ADR and mediation?
Raworths has been a pioneer in the use of Mediation in UK and we have practical experience of a large number of Mediations as Mediator, advocate for parties and even as a party in a Mediation. 

The Raworths ADR team includes both Civil and Commercial and Family mediators.   Christopher Butterworth and Deborah Boylan deal with civil and commercial mediations while Zoe Robinson deals with Family Mediation and Collaborative Law.

Our Dispute Resolution Team have experience of all types of dispute resolution, including Mediation, Litigation and Arbitration. If you have a dispute and need help, even if you doubt that mediation would help you, please contact us.

I am interested in using Mediation to resolve a dispute - what next?
Contact Christopher Butterworth or Deborah Boylan It would be useful if when you do so you could let us have details of the following:

• The nature of the dispute
• How many parties are involved
• Do the parties have solicitors, if so who are they?
• The stage the dispute has reached - has litigation started?
• The value of the subject matter of the dispute
• Any other relevant information