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To litigate or mediate that is the question?

View profile for Kevin Richardson
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Well, it won’t surprise you to know that there is no right or wrong answer! However, for someone who has been a litigator or as I prefer these days a dispute resolution lawyer for over 30 years the tide is certainly shifting to mediation rather than litigation.

Don’t get me wrong there is a time and a place to litigate and go to trial but, those occasions should be few and between.

There is a misconception, that litigators want to go to trial.  While there may be a few litigators out there with that view, a good dispute resolution lawyer is at their best if they are able to assist their client(s) in bringing the dispute to an end as quickly and as proportionately as possible. The pre-action protocols by which all disputes are covered before proceedings and the overriding objective of the Civil Procedure Rules (CPR) makes it clear that the issue of proceedings should be an order of last resort that there is a duty on the parties and their legal representatives to try and resolve the dispute as well as costs sanctions for anyone who unreasonably refuses to engage in the mediation or ADR Process.

There is a skill in resolving disputes and using mediation or other forms of Alternative Dispute Resolution (ADR) successfully, which is why I would always advise any person involved in a dispute to seek legal advice at the earliest opportunity and allow the lawyer to use their skills,  which often takes years to develop, trust me I am still learning after over 30 years in the litigation arena,  to assist and try and bring about a resolution which in my opinion when the time is right should also include the use of mediation.

So, why mediation rather than trial or litigation?

Well, apart from the obvious that going to trial is incredibly expensive (despite the introduction of fixed fees in plenty of cases) it is time consuming, often can take 2-4 years to finish with many trial dates being vacated or postponed due to lack of judicial availability, (which is incredibly frustrating I can tell you) but more importantly the outcome, however good a case you might think you have, is unpredictable and ultimately the court will end up making a decision which can be life changing for at least one of the parties, if not both, and the court process  will only be successful for one of the parties.

Mediation or other forms of ADR allows the parties to control the result, provided what is being proposed is not unlawful, the parties can agree whatever terms of settlement they like, the process is without prejudice and allows the parties to say what they like to the mediator and that will make the party feel that they have been listened to and that they have had their say, it is without doubt quicker and cheaper and can often allow conflicted parties move on with their lives rather than being stuck in protracted litigation.

I am for one a convert and always encourage my clients to use mediation or ADR, is it always appropriate, no, is it always effective, of course not, although my track record is that 95% of my cases that I have taken to mediation have settled successfully and while all of my clients find the day stressful and at times tiring their relief, gratitude and positive view of the process and that they have avoided significant costs and delay cannot be underestimated.

As I said at the outset,  success in the mediation or ADR process is a skill and requires, empathy, a knowledge of the law and key facts, the preparation of the mediation papers and of course the choice of the best mediator for the issues that need to be resolved, which is why the use of dispute resolution lawyers will always be necessary and desirable for clients who have legal disputes.

Mediation works well for most disputes but particularly more complex cases in which I specialise, which include Will disputes, Inheritance Act Claims, Trust and Trustee Disputes and Trust of Land and Appointment of Trustee (TOLATA) disputes.

For advice on all matters relating to those cases or any other dispute and the use of mediation.  Please contact me or one of my colleagues in the dispute resolution team.