DISCOURSE BY DECREE: MEDIATION AMID LITIGATION
Resolving a corporate dispute via litigation is generally no easy matter – a task made more difficult when the stakes are high and neither party is willing to compromise or back down from their position.
What is more, while the filing of a lawsuit and consequent courtroom contest may be the appropriate way to handle some disputes, adversarial trials are costly, time consuming and stressful for participants.
But it need not be so. There are a number of different ways disputants can resolve their disagreements without going to trial. One possible route is mediation – a form of alternative dispute resolution (ADR). Its non-adversarial features are a key selling point for parties willing to go to the negotiating table.
Merits of mediation
As defined by JAMS, mediation is a process wherein disputing parties meet with a mutually selected impartial and neutral person who assists them in the negotiation of their differences. The decision power is left totally and strictly with the parties.
A mediator does not decide what is fair or right, does not assess blame or render an opinion on the merits or chances of success if the case were litigated. Rather, the mediator acts as a catalyst between opposing interests, attempting to bring them together by defining issues and eliminating obstacles to communication, while moderating and guiding the process to avoid confrontation and ill will. The mediator will also seek concessions from each side during the mediation process.
That said, while it is clear that mediation is a popular and highly effective dispute resolution tool, less clear is the extent to which it should be considered a remedy in dispute cases that do proceed before the courts of England and Wales.
Apr-Jun 2024 issue
Fraser Tennant