The Wokingham Paper

Herrington Carmichael: Mediation is a much better option than court right now

If you have a case already up and running in the County Court – it is highly likely that the time scale in getting it to a final hearing is going to be extended as the court staff and judges try and cope with remote working.

Dealing with Court cases is stressful enough without the added anxiety of lockdown and the prospect of your “day in Court” being dealt with via a telephone conferencing hearing or Skype, or the prospect of your case being delayed for months and no end in sight.

Now more than ever, people are turning to using Mediation. It may be Business Mediation or Corporate Mediation, or Family Mediation to settle an estate, all of which aim to bring a case to an agreed conclusion much cheaper and faster, which makes a great deal of sense for all. It does not matter if you are bringing or defending a claim, you just need both sides willing to see if agreement can be achieved using Mediation.

How does Mediation work?

Mediation is a process whereby a third party appointed by both sides works to facilitate an agreement on how both can bring the case to an end. The decisions are all made by the parties themselves with the assistance of the Mediator, so the control of what is and is not agreed is fully in your hands. The Mediator does not give legal advice and does not make any final decision

In the Court process the final decision is made by the Judge and that is binding on the parties, even if neither side is particularly happy with the outcome. 

Is Mediation better than going to court?

Mediation is a much cheaper option than going to court. Mediation has been around a long time and before the lockdown would be carried out at an agreed venue (not a Court) with each side in separate rooms and the Mediator shuttling between you helping you find that compromise acceptable to you both.

If agreement is reached, that will be written down there and then, signed by both sides and can then be sent to the Court to be sealed. It will have the same authority as any other Court Order and as long as the agreed terms are then carried out, it brings the formal Court case to an end.

Mediation but no agreement?

In the event that the mediation route does not result in agreement, the Court case will continue in the normal way but nothing said in the Mediation can be referred to in that Court case.

This enables frank discussions to take place and offers to be made and revised without fear of that being used against you in Court later.

Can we begin mediation during lockdown?

The way Mediation is carried out actually lends itself well to “lockdown conditions” and can be done using Skype or telephone conferencing. If agreement is reached the document can be emailed for signature and then filed with the Court.

How much does mediation cost?

Both sides share the cost of the Mediator on a 50/50 basis. If you have solicitors and want them to assist you in the Mediation, you pay their costs yourself.

Herrington Carmichael LLP has a specialist team of Dispute Resolution lawyers with many years’ experience in dealing with disputes who can be appointed to be the Mediator. If you would like to know more please contact Frankie Tierney or Adrian Taylor for more information.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.

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