Mediation is an assisted negotiation, where parties voluntarily attend a neutral venue with a third party mediator who facilitates communication between them. Due to ongoing COVID-19 restrictions, virtually held mediations have grown exponentially in popularity.

Advantages of mediation include:-

  • expeditious resolution;
  • reduced costs in comparison to formal dispute resolution methods;
  • greater control for parties over outcomes of the dispute; and
  • increased likelihood of preserving working relationships between parties.

Disadvantages of mediation include:-

  • abortive cost and effort with consequent use of formal dispute resolution where mediation does not secure a negotiated outcome;
  • more expensive and time consuming than direct negotiation;
  • its dependency on the willingness of parties to negotiate – parties cannot be compelled to engage; and
  • a lack of formal discovery process, which means that parties are not obliged to exchange information with each other.

In most cases, mediation is an appropriate and cost-effective means of dispute resolution. The proportion of mediations which result in a settlement agreement is very high.

The appetite for mediation within the Scottish civil justice system has increased, although we are not yet in the position of our English counterparts. Whilst mediation is not compulsory in England, courts do impose cost sanctions upon a party who is deemed to have unreasonably refused to take part in mediation in advance of, or during, litigation.

In Scotland, the courts encourage mediation in certain types of dispute but do not impose cost sanctions for failure to engage. This is currently the subject of proposed reform.

Brodies regularly uses mediation as one tool for achieving negotiated outcomes. We have found virtual mediations to be a particularly successful means of achieving early and cost-effective resolution