There are many reasons for a party to a dispute wanting their day in court: vindication, reparation, finality, to name but a few. But the number of civil cases brought to solicitors that end up in a trial is small, around one in 20 of those issued in court, and there is good reason to believe that this will only get lower.
It has been the understanding among civil litigation lawyers for some time that failure to at least engage in alternative dispute resolution (ADR) will mean that at any later trial you are less likely to recover your legal costs from the other side, even if you win. It is increasingly common once a claim has been issued at court for the judge to give a direction that proceedings be ‘stayed’, or paused, to allow the parties to explore ADR.
In most family cases the court will not accept applications from the parties until mediation has been shown to have been considered. The exceptions would be where there is a risk of violence to either party or to a child of the relationship.
The form of alternative dispute resolution in general most suited to disputes between private parties is mediation. The parties agree to appoint a mediator who will facilitate a settlement between them. The mediator’s role is not to impose a judgment on either party, but to bring them to an agreement. How this is done depends largely on the parties. At an agreed time and place the mediator will meet the parties together and / or separately in private as they choose, to search for common ground and to encourage them to explore what might be an acceptable outcome. Anything told to the mediator by the parties is in confidence, unless they agree for it to be shared, and the discussions at a mediation session are without prejudice to any future proceedings.
If a settlement is reached a document can be drafted and signed by the parties there and then to give it effect. The duration of the mediation session is fixed beforehand, usually a full day, with the understanding that if agreement is not reached by the end of the session, then mediation has failed, and the parties may move on to the next stage in the civil procedure, usually court proceedings.
Although a mediator has no powers to make the parties agree on a settlement, mediation generally has a high success rate. The mediation audit carried out by the Centre for Effective Dispute Resolution in July 2018 reported that just over 74% of their cases settled on the day, with another 15% settling shortly thereafter. It demonstrates the power of compromise, and that with the right encouragement from advisors and mediators, even apparently intractable disputes may be resolved.
When the choice is between allowing a disputed asset to be absorbed in the costs of a trial, or accepting a smaller share and moving on, the mediation process has been shown to bring clarity to litigants’ decision-making.