MEDIATION – WHY IT SHOULD BE THE ‘GO-TO’ OPTION

Having worked as a lawyer for over 26 years, most of it ‘in house’, and having qualified as both a mediator and an adjudicator, I am continuously surprised that mediation is so under used.

With compelling virtues including being much quicker, much cheaper, much less stressful and having a success rate of over 85% why on earth is this the case?

For the initiated mediation makes perfect commercial sense and really should be the default route for dispute resolution.  Even the Courts encourage and in certain circumstances mandate mediation.

So why are we mediators not in higher demand and why would parties not automatically look to mediate as a matter of course?

I’ve thought about this a great deal and I think the answer is that the message relating to the value of mediation is just not getting through.  Perhaps parties do not understand the process or mistakenly think mediation is simply about compromising a good position.  Also, I think the natural reaction to the frustration caused by a dispute scenario is too often attack.

In the world of construction for example, from May 2016 – April 2017 (latest figures I could find) there were 1,533 adjudication referrals and in roughly the same period only 2% of construction disputes referred to mediation.

Other areas of law, such as insurance, employment, intellectual property and personal injury fared little better with single figure percentages of disputes being referred. 

I do not blame parties for doing this because prior to becoming a mediator and seeing for myself the obvious benefits and the power of the process, I too would have probably dismissed mediation without really thinking about it.

Having a strong construction and commercial background, I would have first tried to settle matters on a without prejudice basis and if that failed, I would have either Adjudicated or looked at Arbitration or Litigation. 

I doubt I’d have even considered mediation and that is something I now regret. 

So, if you find yourself in a dispute, do not automatically follow the route you’ve done in the past and give mediation serious consideration.  I am sure you’ll be glad you did as it is likely to save you substantial amounts of time, money and stress.

As the poet Robert Frost stated in his famous quote about diverging roads,

‘I took the one less travelled by,

And that has made all the difference’.

For further details about mediation and how we can assist you, please contact [email protected] or visit our website www.smartmediation.co.uk

For all other disputes related matters, please contact us at [email protected] or visit our website www.smartdisputes.co.uk