Picture two parties who are in a dispute. They've tried to resolve it themselves by discussions. They've even each instructed lawyers to send formal letters, but to no avail. What should they do?

You might be forgiven for assuming that the next step would be court proceedings. More and more, however, individuals and business are turning to alternative forms of dispute resolution ("ADR") to try and resolve their disputes. Mediation is one such form of ADR.

What is mediation?

According to the Centre for Effective Dispute Resolution ("CEDR"), mediation is:

" ..a flexible process conducted confidentially in which a neutral person (a mediator) actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution."

Other key points to keep in mind are:

  • Nothing said during a mediation can be referred to during any subsequent legal proceedings without the express agreement of both parties (i.e. mediation is "without prejudice").
  • You are not forced to reach a resolution (unlike in litigation or arbitration, where a decision is forced upon you), but if you do, any agreement is legally binding and enforceable.
  • You can mediate even if court proceedings are already underway, and the courts will often actively encourage the parties to consider mediation throughout the lifetime of a court case.

Why choose mediation?

Mediation is usually much quicker and cheaper than traditional litigation. Fundamentally, however, one of the main reasons for choosing mediation as a means of resolving a dispute is that it works. CEDR recently released the figures from its bi-annual audit of civil and commercial mediation, which showed that, from a survey sample of 336 cases, 74% settled on the day with 15% settling soon after mediation - an aggregate of 89%. Therefore, if both parties enter the mediation in the right frame of mind, there's no reason to think it won't be resolved to both parties' satisfaction.

We have extensive experience in advising and representing clients through the mediation process. If we can be of any further assistance, please contact Fiona Chute or your usual Brodies contact.


Fiona Chute

Senior Associate