Mediation & Dispute Resolution
Mediation & Dispute Resolution
What is Meditation?
Mediation is a voluntary, non-binding and private dispute resolution process in which a neutral person helps the parties reach a negotiated settlement. The introduction of the Civil Procedure Rules (CPR) in 1999 transformed mediation into an integral part of the pre-trial process. It is now accepted that all litigation lawyers must consider if mediation is an appropriate method of resolving their client’s dispute. Costs sanctions have been imposed against parties who decline mediation.
- Voluntary - Mediation cannot take place unless the parties agree to enter the process. Mediation is not possible without the participation of all parties, and will cease if one party walks out (which they are free to do at any time).
- Non-binding – Mediation is non-binding until the point of settlement. A mediator has no authority to make a binding determination, so if the parties cannot agree, there will be no settlement and the case will proceed to the next stage in the litigation process. However, if settlement is reached, the agreed terms will form part of an enforceable contract.
- Highly successful - Even if the mediation does not end in a settlement on the day, it can act as a catalyst to settlement after the event. There is evidence to suggest that many cases that do not settle on the day, settle shortly after.
- Without Prejudice - The mediation process is “without prejudice”. Therefore parties can disclose information, express views, make suggestions or offer concessions, safe in the knowledge that this will not preclude them arguing a different position should the matter proceed to trial. Similarly, a party is free to refuse offers made in mediation without the risk of this being held against them.
- Private and Confidential – The process is also strictly confidential. The confidential nature of mediation negotiations stands in clear contrast to the courtroom, which is in public and potentially extremely embarrassing.
RICS ACRETM Mediation Accreditation
RICS ACRETM mediation accreditation enables the mediation of complex disputes to the highest standards across land, property, construction and infrastructure.
ACRETM is a robust approach to mediation based on four main principles:
- Analytical - Helping parties to analyse the circumstances, law, evidence, as well as the strengths and weaknesses of their case to empower them to make pragmatic and viable settlement decisions;
- Commercial - Encompassing the wider commercial realities as well as narrow points of law to provide a flexible settlement, which courts or arbitration cannot;
- Restorative - Focusing on restoring the business relationship between parties - proceedings are completely confidential to limit any further damage and enable parties to restore constructive ongoing relationships;
- Expert - With many years’ experience and expertise we are able to help parties to reach a ‘common-sense’ settlement, or to narrow the issues in dispute, reducing court or arbitration costs.
The role of the mediator is key to the success of any mediation. The mediator’s role is to assist the parties in a non-judgmental way in their negotiations with each other and help the parties work towards a consensual resolution to the dispute.
By its very nature a settlement is only possible in mediation with the consent of the parties. It is they who are responsible for the terms of any agreement. As the onus of arriving at the terms of settlement rests with the parties, the flexibility of the process allows for more ingenuity and extra-legal solutions than would ever be possible from a determination imposed by a court or other arbitral process. Hence we are able to mediate on a wide scope of disputes with particular emphasis on:
- Development Agreements
- Joint Ventures
- Planning Obligations
- S106 Agreements
- Valuation – we are RICS Registered Valuers
- Overage and Clawback Agreements
- Sale and Purchase Agreements
- Subject to Planning Agreements
- Options and Site Promotion Agreements
- Boundary Disputes
We can also assist clients as Mediation Advocates (i.e. acting for a party to the dispute rather than as a neutral Mediator) in order to help prepare for meditation and advise on settlement options. This can be far more cost effective than a failure of mediation with the inevitable litigation.