If you have ever been (or are) in a long-running dispute or disagreement, you will know just how draining it can be, not just emotionally but also financially. Unresolved strife within the family, or with business partners, or a neighbour, or in a business deal, is exhausting. It’s stressful, wastes huge amounts of time and energy, and usually costs a great deal of money.
If you are like most litigants, you want a quick and clear-cut result: an end to the worry and the uncertainty; the ability to get on with your life without the cloud of conflict hanging over you.
Even if the problem has reached the point where legal proceedings have started and a court case is looming in the distance, you still have the uncertainty of the outcome. How will the judge view your case on the day? How strong is the evidence on your side? How reliable are your witnesses? Litigation risk is a formal way of your lawyer telling you that, no matter how good your case appears, you cannot be guaranteed a favourable outcome.
The law attempts to deliver a judgement based on the facts, as presented in evidence on the day of the trial. The judge typically finds a winner and a loser. He might award damages to the winner; he might impose an injunction to stop the defendant continuing to do whatever it was that started the dispute. But his options are severely limited. He can’t look beyond the evidence and he won’t ask you what you want or need from the litigation.
Surveys of people who have experienced litigation show that, even when they win, the majority feel dissatisfied by the process. The matter was taken out of their hands early on, and they followed it from a distance for a long time, finally being told what the outcome would be by a judge. There is always a cost, even if you win; not all legal costs are recoverable from the losing side; but there are also the unquantifiable costs: time wasted; stress; and the destroyed relationships that inevitably follow a court case.
It’s an informal, non-judicial process. The mediator’s job is to help both sides find new ways to look at the dispute – as a problem to be solved by both sides rather than a battle to be won by one side and lost by the other. The mediator won’t tell you what to do and won’t give an opinion on the rights and wrongs of the case. He will give you time to put your side of the case, but he’ll encourage you to look at your real interests in business and personal terms, rather than in terms of the legal niceties of the case. What do you need to achieve in order to be able to regain control of your life? The answer to that may be a long way from the narrow result a court judgement could deliver.
You don’t have to wait until court proceedings have been started before considering mediation; in fact as soon as you find yourself in dispute, you can think about mediation – ideally before the situation has become so polarised that relationships have been irreparably damaged. Control of the dispute stays with you. Your business remains confidential. You can look for solutions that cannot even be considered by a court, but that will suit your needs. The process is quick – a mediation can be set up in a matter of days if needs be, but easily within a couple of weeks. It’s not expensive; because it’s an informal process you will not be trying to prove your case to the mediator, so you won’t need all your experts around you (although you may want to have your solicitor with you); but it’s up to you – it’s your dispute and the mediator will help you find a workable solution to it.