the cost of winning...
Talk to anyone who has been through litigation and a trial and
they may well tell you the process was cripplingly expensive and
the outcome unsatisfactory. Why is it then that people, their
companies, and sometimes their lawyers, more often than not, seem
to regard any form of mediation as a sign of weakness rather than a
sensible first step? Maybe most people want to "win" or prove
a point.
If that is not true, why is it that so very few disputes going
through the Courts are mediated? After all, mediation does
work in resolving around three quarters of disputes.
And it is not just disputes that can be addressed. At the very
early stages of discussions about a potential dispute, where the
parties just differ but have not fallen out, or maybe where parties
are trying to negotiate contract terms, a good mediator can help
sort things out.
Cost should not be the issue. The market seems particularly
competitive for lower value claims. Per party published rates (in
February 2011) for the National Mediation Helpline are £300 for a
three hour mediation, and £425 for four hours, with additional time
at £95/hour. But of course under the NMH scheme you may have little
control of the appointment process and risk dealing with a mediator
with little relevant experience. The big national providers
can work out to be more expensive depending on the seniority of
mediator.But even so the cost of the mediator is often relatively
low, and the potential cost benefit well worth the investment,
compared to the issues to be decided.
An important consideration is that mediation is a very flexible
tool. Together with the mediator, parties can agree the best way to
address the issues. What is it you want from the
process? Do you want a mediator to just facilitate discussions
or to give you an opinion about the rights and wrongs of your
position? Most mediations are "facilitative" rather than
"evaluative", but sometimes parties do want to know, from a
mediator experienced in their business, where they stand.
Is the dispute just about cash? If it is, then do you want a
protracted "formal" mediation or would you rather more of a
negotiation just around each party's "bottom line"? This
approach, of just exploring the boundaries of a cash settlement and
ignoring the strengths and weaknesses of the parties' positions, is
quick. Because it cuts to the chase, time limited mediation
seems to be becoming more popular, particularly where insurers are
involved.
So maybe if your negotiations are stalling, or you are at the
start of a dispute, you could think about what you would like to
achieve and how, and whether the right mediator from BL Resolve's mediation
services could help.
