Alternative Dispute Resolution - You can win if no one loses

by Qasim Nawaz

 

1. We all take measures to avoid having our dirty laundry aired in public. The methodology of resolving disputes involving money should be different. Yet many of those running disputes today more often just let them run - gambling that you will come out shining but your opponent will be exposed for the stinker he or she really is. Care needs to be taken not to become too absorbed in the dispute, so that you cannot see that a path to successful resolution does exist without the utter annihilation of your opponent.
   
   
2. In the post-Lord Woolf ‘Civil Procedure Rules world’, Mediation is becoming very popular with parties who recognise that a conflict needs to be managed carefully and sensitively, with a view to getting the best overall result. The results achievable may be very different from just getting a money judgment from a court. Lawyers should always be looking to the best way or ways to achieve the realistic objectives of their client, and this means looking beyond just issuing proceedings whenever something is not as the client wants. Nor indeed is it simply a case, for a defendant, of bashing out the best and strongest lines of defence and spending months bolstering the weaknesses. If the two sides sincerely desire to set things right, to solve the problem that has arisen between them, then mediation can create a way of reconciliation between them or an amicable parting of ways.
   
   
3. Mediation is a voluntary, confidential and without prejudice process. From a dispute resolution perspective, court proceedings differ by virtue of being a more evaluative process where the parties cede control of the outcome to a judge limited to the remedies available to the Court. In contrast, a third party mediator facilitates the information exchange and negotiation process but whether there is any final settlement and on what terms remains within the control of the parties themselves. Each party to mediation should understand that willing participation and co-operation to the process is fundamental.
   
   
4. If lawyers are not already advising you about this at the outset, then consider what their function really is. It is hardly surprising if your lawyer begins with bullish advice on the legal merits of resolution by a judge at the outset because this does build your confidence in his or her ability as your legal adviser. Inevitably there is always the risk that this does not lead to the best strategy for the management of the conflict that arises. Too often you can feel you are witnessing a tussle between lawyers eager to prove their advice was right, or to force their opponent to crumble under pressure of the strong tactics used against them.
   
   
5. You need to be given a realistic assessment of whether going from issuing proceedings to trial in court is likely to be beneficial to them. It is essential to appreciate what you can get out of mediation from a conflict management perspective in order to be able to give something in return.
   
   
   • Is it effective? Yes – you may come demanding what you want but leave taking away what you can live with. Every mediation is also an opportunity to scope the issues to enhance mutual understanding of what is in dispute, without compromising your legal rights.
     
     
   • Is it less stressful? Yes – the voluntary, confidential and without prejudice nature of mediation enables your opponent to open up to options for the future that include preserving your working relationship. Equally, if your opponent wants to release built up frustrations, they can be left feeling as though they have had their “day in court”.
     
     
   • Is it quicker? Yes – the availability of mediators is much better than court judges, and there is far less preparation needed for a mediator who will give no decisions on the merits in order to remain neutral.
     
     
   • Is it cheaper? Yes – if the dispute is resolved, there is always a significant cost saving. Those thinking mediated disputes that are not resolved on the day are a waste of costs, should contrast having to pay two legal bills for court disputes that go against them. For disputes that do go for you, typically one third of your legal costs are wasted as being
     disallowed for unreasonableness or proportionality.
     
     
6. Consider for instance, if you were the recipient of an invoice and refused to pay because of reasons to do with cash-flow, or felt the effort for the work done did not justify the cost in the invoice. What if the other party’s standard terms and conditions applied making such costs properly due? You might delay payment to wait and see if the claiming party is willing to spend the time and energy pursuing court proceedings. Your starting point in the dispute is that you are interested in delay and expense for the claiming party but did you consider -
   
   
   • mediations are great opportunities to scope issues for the defence.
     
     
   • the claiming party may be more reluctant to stop once court proceedings are commenced. By which stage, considerable time is spent and stress endured keeping track of legal costs between bills, replying to calls for documents, instructing experts, preparing witness statements and dealing with the uncertainty in outcome.
     
     
   • you may be disappointed to find that moral and other non-legal points are irrelevant in court but may be considered in mediation.
     
     
7. Equally what if you were the party keen to commence court proceedings with strong legal advice that your claim is correct. Once you make a conscious decision to take the matter to court, any alternative can be seen as a distraction but in our experience, you may find -
   
   
   • yourself working out the cost of certainty? Losing ordinarily leads to payment of two legal bills and even winning typically does not lead to recovering more than two-thirds of your costs. All the while, pressure builds upon your purse and the long wait for court continues.
     
     
   • you prefer to present the strengths of your claim to the other party without the formality of presenting everything through your lawyer in court.
     
     
   • you really wanted the other party to do or stop doing something that they might have agreed in a face to face mediation but that the court will not order or it proves ineffective enforcing.
     
     
8. There are many methods for resolving disputes, but all of them should be seen as simply a process of helping those in conflict reach agreement between themselves or trusting a third party to decide for them - for the latter please see separate article relating to early independent evaluation (insert link). If they rely on a third party to resolve the matter, it would be much better for them if that third party is someone they have (a) selected, (b) approved and (c) discussed all the issues with in a direct two-way conversation. Rarely do parties feel they have the same closeness with a court. This is where mediation comes into its own.
   
   
9. If the two sides sincerely desire to set things right for themselves, they must focus upon what they can live with for the future. If an apathetic defendant and a confident claimant can give up their desire to see the other party lose and they instead focus upon the reality of what they themselves could win or lose, they have a more realistic perspective. From that position, they have a much better chance of achieving greater control of whether they win, lose or even find a solution that is more sophisticated than one imposed by court.
   
   
10. And if lawyers are not helping you assess this, it may be time for you to call the mediator in for yourselves before the legal costs pile up and there is a lot more at stake riding on a random third party’s decision.