The method of resolving disputes through a process broadly known as ‘mediation' is increasingly being used as a way of avoid traditional court or tribunal-based litigation, with all of the cost and delay that such a process entails. FTB supports the development of this trend and is able to offer a number of trained mediators, who are also experienced and highly regarded practitioners in their own right.
Mediation itself should be distinguished from arbitration or other forms of adjudication. It is essentially a long-established method of negotiating where two (or more) parties, who have ceased to be able to resolve their own differences, are assisted in so doing by a mediator who has received training in the various techniques and practices required to achieve a resolution.
Fundamental elements of a modern mediation will include:
- Voluntary course of action - sought by the parties themselves
- Costs of the mediation established from the outset
- Facilitation of negotiations by a qualified neutral mediator(s)
- Series of informal discussions taking place in open forum and in private with mediator(s)
- All discussions confidential within the mediation, unless/until agreed otherwise
- No binding settlement unless explicitly agreed and executed by the parties
- Settlement agreement sets out all terms upon which conclusion reached
The protocol for Preliminary Case Management (High Court, Queen's Bench Division) which deals with the majority of high-level commercial disputes in England & Wales, provides that
‘Parties are encouraged to use ADR (such as, but not confined to, mediation and conciliation) to try to resolve their disputes or particular issues. Legal representatives should consider with their clients and the other parties the possibility of attempting to resolve the dispute or particular issues by ADR and they should ensure that their clients are fully informed as to the most cost effective means of resolving their dispute.
The protocol summarises the benefits of ADR, as follows:
The settlement of disputes by ADR can:
(1) significantly reduce parties' costs,
(2) save parties the delay of litigation in resolving their disputes,
(3) assist parties to preserve their existing commercial relationships while resolving their disputes, and
(4) provide a wider range of remedies than those available through litigation.'
An important feature of ADR (save for a very limited pilot scheme currently being trialled in the Central London County Court) is that it is invariably sought out by the parties themselves, rather than being imposed by a third party. As the leading guide to civil procedure states (White Book (2003) para 1.4.11).
"The hallmark of ADR procedures, and perhaps the key to their effectiveness in individual cases, is that they are processes voluntarily entered into by the parties in dispute with outcomes, if the parties so wish, which are non-binding. Consequently the court cannot direct that such methods be used but may merely encourage and facilitate."
Securing the (not inconsiderable) benefits of: reduced expense, speed, control by each party, the maintenance of business relationships, confidentiality of discussions and flexibility in solutions is fundamental to the process.
FTB has a Mediation Group and dedicated mediation facilities on site. FTB mediators cover a wide range of work, including:
- Compulsory Purchase & Compensation
- Gambling Disputes
- Administrative Law
- Contract Law
- Landlord & Tenant
- Local Government