The Case for Mediation After You’ve Brought a Civil Claim
UK courts expect parties to attempt mediation or other ADR after a civil claim, and unreasonable refusal can lead to adverse costs orders. Mediation can resolve disputes faster and cheaper than trial while keeping you in control of outcomes. This article explains why solicitors recommend mediation, when to try it, and how it impacts your litigation strategy.
When you put in a civil litigation claim, it is often the point where matters become no-nonsense. You have been through your share of runarounds, correspondence and empty words, and now you are asking the court to make a ruling. It is only natural to wonder why your solicitor would be broaching the subject of mediation at this juncture. The answer is simple: UK courts want to see that you have made a good-faith effort to put things to rights before a judge is called in. Mediation is the way to do that without breaking the bank. A solicitor who does not put it on the table is not being of much service; in fact, they could be leaving you open to unnecessary expense and an unfavourable order from the bench.
Understanding what is on offer
Mediation is a private, voluntary affair. An impartial third party, the mediator, will help you and the other side come to some kind of arrangement. This is not about the mediator making a call on who is in the right or dictating terms. They are there to steer the discussion, put positions to the test and go back and forth between rooms to see if there is any room to move. And because it is “without prejudice”, nothing you say in the room can be used against you in court should you part ways.
This is not something you need to be left to figure out for yourself. The rules of procedure, and the line of cases such as Churchill v Merthyr Tydfil, are plain: the courts can and will nudge you towards mediation. If you spurn it for no good reason, you could face cost sanctions even in the event of a successful claim. Your solicitor has an obligation to give you a straight talk on what mediation is, how it stacks up against a trial, and what it means for the bottom line in your case. Failing to have that dialogue means you are heading for a hearing date with little more than a hunch, and that can be an expensive proposition.
Who to use
So you are open to it. Who should be your mediator? The Civil Mediation Council (CMC) is the place to start for an accredited list of providers in the UK. But your solicitor’s own book of contacts is worth heeding. They will have a sense of which mediators are thorough with the paperwork and which ones can handle a tough personality. There are also the MoJ’s small claims list, or word of mouth from barristers’ chambers.
What to look for is a combination of credentials, relevant experience and an openness about their fees. A competent provider will be upfront on whether they work on a fixed or hourly basis, what happens if you have to cancel, and if the session is to be in person or over the web. Speed is one of the main selling points of mediation; if a firm cannot put a date in the diary for a few weeks, they are not offering much of an advantage.
Who would be the right fit for you?
You would not expect every mediator to be suited to every case. A property dispute is best in the hands of someone who knows his way around a plan; a commercial matter requires a head for figures. Some situations call for a mediator who is not afraid to be direct and point out where you are on weak ground, while others need a more measured hand. Then there is the question of format and price. It is perfectly reasonable to have a brief word with a prospective mediator before you commit; it will put you in mind of more than a website ever will.
A word on Effective Dispute Solutions Limited
There is a valid reason for the demand of mediation services by Effective Dispute Solutions Limited. They are a UK firm with 40 expert mediators on their panel and nearly 25 years in the field. And over 100 genuine testimonials. They cover the full spectrum from family and neighbourly issues to complex commercial and employment disputes. They can put a mediation in motion within 14 days, be it in person or by Zoom, and their mediators will travel to the parties. If an in person mediation is essential. That kind of turnaround is exactly what you want.
With a mix of low-value and high-stakes work in their portfolio, they are a sensible one-stop for a claim that is not entirely straightforward. Filing a claim is a step in the process, not a closing of the door. Have your solicitor put the case for mediation in front of you, and consider a referral to a company like Effective Dispute Solutions as a chance to have your way with the matter, rather than having a judge decide it for you.
