What is Mediation?
Mediation refers to the process of dispute settlement alternatively which is conducted interactively, with the third assisting the parties in dispute to resolve the conflict with the help of negotiation and communication techniques. Mediation is a process in which the mediator listens to the complaints of the complainant as well as the respondent while considering their settlement discussions. The main purpose of mediation is to settle the dispute between the parties outside the court and within a reasonable timeframe to avoid any form of delay. The role of the mediator in the mediation process include the negotiation, it helps in dispute prevention more rather than dispute resolution and can be considered as the initial step towards the resolution or peaceful settlement of the disputes through the debate or interaction between the parties at a common platform and a common mediator decided by the parties mutually. While mediation provides a speedy process to dispute resolution it is quite effective as well as results in cost-beneficial for the parties as compared to litigation which is on the contrary quite expensive as well as time-consuming.
In the United Kingdom, mediation is one of the most preferred forms of dispute resolution process by most legal adjudicators and clients, besides that the court also has the power to encourage the parties to opt for mediation as a process in case the court considers, it as an alternative form. All the parties are encouraged to participate actively in the mediation process through active interaction. Mediation is an alternative form of alternative dispute resolution which aims at resolving the disputes between the parties with the help of a negotiator or counselor, aiming to justify the rights, needs, and interests of the parties. The following paper highlight the scope of mediation in the United Kingdom, Mediation as a mode of settlement, the main purpose of the mediation, steps, and procedure involved in mediation, followed by a conclusion.
Mediation is appeared to have been used from ancient times and was used to pronounce by various names like medium, intercessor, interlocutor, interpolator, conciliator, interpret. In the United Kingdom, the growth of mediation can be witnessed from ancient history, where it was considered as the only solution to resolve any disputes between the parties. As compared to litigation mediation is often considered the most effective dispute resolution process is often voluntary, flexible, and informal. It focuses on the interests, needs of the parties, and the rise of mediation in the United Kingdom has been very slow due to various reasons comprising of the lack of awareness among the lawyers about the knowledge as well as the befits of mediation besides resisting to the concept of compromising can be the main reasons for the slow pace of mediation. But the people have always opted for litigation as the best method for securing justice as the public awareness about mediation was also low. Earlier mediation and negotiation were not considered to be the appropriate form of dispute resolution, in the case of Walford v Miles, the House of Lords held that an agreement to negotiate cannot be enforced and the court cannot access compliance and is not liable to determine the necessary obligations. But over the period mediation in the United Kingdom has started to gain popularity and the courts have adopted an approach to refer the parties to mediation and negotiation in case of any dispute resolution clause where the court is of the required opinion. In the case Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd, the court held that if the contract contains a dispute resolution clause and the matter is brought to the court then the court has the discretionary powers to stay the proceedings if the clause is considered to be an considerable agreement to arbitrate as in the case of an expert determination clause. Moreover, mostly the mediation agreements are uncertain as parties either do not agree or fail to choose an appropriate arbitrator, the same was held in the case Walford v. miles, where the court held agreements to either agree or to negotiate often lack uncertainty and are not enforceable. The English courts have also considered the enforceability of the mediation clause as an important aspect, in the case, Halifax Financial Services Ltd v. Intuitive systems Ltd., the court held- Mediation clauses in the contract should be considered a priority or the condition precedent to becoming enforceable in the issue of the litigation process. Over the year’s mediation has become enforceable through the process of negotiation and the enforcement of the new civil procedure rules in the United Kingdom, the process of arbitration, as well as mediation, has become one of the important approaches of speedy dispute resolution. Besides that, the rules have provided an opportunity to the parties where they can try for arbitration or mediation for the earliest settlement of their disputes by holding on to the process of litigation. Apart from that if parties despite having an arbitration or mediation clause in the agreement, reject the same and still opt for the litigation, the court can impose the penalty upon them. The same has been held in the case Dyson and Field v Leeds City Council, where the court of appeal reminded the parties that have an option to order indemnity and double the amount of interest on damages if parties reject the court’s suggestion to unreasonably reject the option of ADR.
Scope of Mediation in the UK
Mediation as an alternative for dispute resolution can be considered as one of the effective means as it is a flexible, speedy, and cost-effective way of dispute settlement as compared to the litigation process which is quite cumbersome, costly, time-consuming, and does not involve the complete participation of the parties which is often inclusive under the mediation process. Mediation being the most cost-effective method of resolution is more prevalent in the United Kingdom and in case the parties still fail to opt for mediation as one of the remedies for resolving the disputes the costs will be imposed on them for refusing to accept the offer, the same has been reiterated by the court in the case Dunnett v Railtrack, the court held that encouragement and facilitation of the ADR through the court is considered an active case management strategy and parties are duty-bound to further the objective by considering or opting the ADR procedures, failing on which parties will have a liability to bear the costs in the form of sanctions.
Mediations are the most well-established and authenticated process which is well established in most of the common law jurisdictions.it can prove to be a most effective remedy to resolve a wide range of disputes, it often results in high rates of success where party resorts to mediation in place of litigation but in cases of commercial disputes mediation is the most relied on a form of alternative dispute resolution except for the cases of fraud if the party discovers the same is duty-bound to discontinue the same before the eve of trial, in the case PJSC Aeroflot v Leeds & another, the court held, that discontinuing the claim of fraud on the eve of trial liable to pay the indemnity costs. Further, the court ordered the claimant to pay the cost to the defendant on an indemnity basis where the claim was discontinued on a fraud basis shortly before the commencement of trial. Moreover, Mediation being one of the most voluntary, facilitative, and confidential processes is often conducted with the help of a mediator who tries to reach a mutually acceptable agreement to resolve any form of dispute, one of the most effective advantages of a settlement is that once the parties decide to reach to a conclusion the mediator can arrange for an out of court settlement for reaching a certain conclusion. More often the litigation process often comprises of the heavy cost and the investments where it may or may not order for the damages to the suffered party and there may be higher chances of losing the case while this is not considered in the case of mediation it contains an advantage and chances of winning the case or having to pay the costs of the damage. There can be many benefits that can be attributed to the mediation process as it guarantees the confidentiality under which all the disclosures, communications, admissions, and concession are strictly adhered to and remains confidential between the parties and the mediator. The main part of the mediator is to provide a remedy for the parties under dispute, one successful mediation can be where the decisions are often made by parties keeping given all the circumstances and recording in the form of a settled agreement besides being signed and agreed by the parties. Whatever the terms are being agreed between the parties they will be considered to be enforceable and bind the parties and in case of any default, the party at fault can be sued to obtain damages.
Purpose of Mediation
The main objective of mediation is to sort out the disagreements between the parties as early as possible and to provide cost-effective remedies. Mediation is not just about the settlement process only it is a combination and collective efforts of the parties as well as the mediator to reach an effective conclusion cost-effectively and speedily. Mediation often guarantees the resolution of the disputes in an effective manner where the disputes often occur between the parties in any contractual relationship such as in case of either distribution agreement or the joint research and development contract, often people prefer litigation as an effective solution but they tend to forget that the court processes involve a lot of time and money, which sometimes either of the party cannot even afford so opting for mediation can often prove to be a boon for the parties where they opt for pro bono or bankruptcy claim. However, the mediation provides the parties with a lot of remedies and advantages such as it minimizes the cost-exposure which is involved in settling any disputes. It maintains control over the entire dispute settlement process, ensures a speedy settlement, and helps in maintaining confidentiality concerning any disputes which may either occur or be resolved. Since mediation involves the resolution of disputes through the medium of verbal interaction between the parties it in a way helps in preserving an underlying business relationship between the parties under the disputes. If effective training can be provided to the mediators or lawyers, then the mediation can be successful in providing effective solutions to the parties at half of the cost in an effective manner. Many ADR organizations presently in the United Kingdom set their own set of rules and provide their form of training under their prescribed code of conduct for the mediators. Under the European Convention on Human rights by the Human Rights Act 1998, has restricted access to the courts and thrust a condition of procedural fairness where every individual deserves a fair chance of being heard and fair process to resolve the dispute with maintaining the dignity and fundamental rights of every individual, which has been enforced through Article 6 of the convention. In the case Elanay contract v. The Vestry, the court held that under the European Convention on Human Rights, Article 6 requires that party must be having a proper chance to present its case, without application to adjudication on the basis that the adjudicator’s decision is not final at all, Article 6 is unlikely to provide any basis for the procedural fairness in mediation.
The mediation process is though flexible and is cost-effective besides being voluntary and non-binding, any mediator under the process cannot impose the decisions upon the parties rather it provides ample opportunities to the parties to make their own choices and decisions. Rather he is duty-bound to assist the parties in their negotiation processes by identifying the main issues and developing the appropriate strategies in resolving those issues. One of the main benefits of opting for mediation can be that in case the mediation fails then parties still have the option to resume litigation as mediation compliments access to the courts.
Steps and Procedure Involved in Mediation
For the effective settlement of disputes, the parties under mediation must be ready and willing to solve the dispute through the effective model of the communication process. They both must agree to the selection of one mutual arbitrator who should be eligible to resolve the disputes and parties also have the option to choose and appoint a mediator from the list of mediators who are empaneled with the established body for the same. The process of mediation starts with the formal introduction of the mediator as well as the process of mediation, it is important mostly in the cases where the disputing parties are an organization or any company. The mediator will firstly, hold a private session with the parties to focus on the needs and interests of the parties and the mediator will then aid and provide ease to the parties to solve their disputes amicably and effectively. If the parties can resolve their disputes then the mediator will give counseling to the parties to enter into a settled agreement where the terms and conditions of the agreements will be discussed in detail which will be facilitated by the mediator after which whatever settlement agreement will be made, both the parties will become bind by the agreement. Section 2 (a) of the Mediation Act 2012, applies to various personal and commercial disputes that may arise, like Constitutional law, prerogative writs, election petitions, proceedings, and temporary and permanent injunctions under the land acquisition act 1960, judicial review, appeals, revisions. Section 2(a) of the Mediation Act, 2012 provides that the disputing parties are often encouraged even by the courts to resolve their disputes through mediation rather than opting for litigation. The mediator directs the entire process and ensures that the mediation process goes on smoothly, there are various steps involved in the process which include the act of transparency, cooperation in finding a solution to the problem, respecting the confidentiality of the parties. After the effective first joint session, parties will conduct another session privately with the mediator where they usually disclose those issues which they do not feel comfortable in disclosing in the first joint session, and in that private session parties are given equal time and opportunities to disclose the confidential matters with the mediator, after which the parties are required to terms of settlement in detail which will be facilitated by the mediator. After which the agreement will be signed by both the parties and will become binding on them. In case ihe parties fail to reach a cordial settlement at the end of mediation, the parties will at least be able to learn the strength and weaknesses of their case as well as the failed attempt of mediation, as a result, they can always resort back to litigation. The process of mediation is though simple and speedy as opposed to litigation which is quite lengthy and time consuming but is very successful in protecting the rights and interests of the parties at a length and mediation is not always about the dispute settlement or resolution but also involves providing effective remedy and solution besides protecting the right and interests of the parties at length.
Mediation and Litigation
Conclusion
The above paper highlights the scope of mediation in the United Kingdom, Mediation as a mode of settlement, the main purpose of the mediation, steps, and procedure involved in mediation, followed by a conclusion.
As compared to litigation, mediation is a cost-effective time method of dispute resolution which is speedy as well as cost-effective, providing a diligent solution to the parties. Besides that, the main purpose of mediation is to provide an amicable solution to the parties without any sort of hassle between them, it is the easiest method of dispute resolution as it involves the parties to the extent that they choose their arbitrator, place, and the decision of their choice to make the process of mediation successful. It is the process of dispute resolution where the mediator listens to the dispute to resolve the conflicts between the parties with the time frame and provides an easy and effective at outside the court settlement. It is not only related to settlement but also includes protecting the rights and interests of the parties without the interference of the judicial process. It is the process to resolve the disputes which have been continued through the ancient era and has evolved with time in the form of mediation. Though the pace of arbitration has been slow over the years since people often opt for litigation, due to lack of awareness of the alternatives, it is a complex process that takes away huge time, and money of the parties as a result parties are not satisfied sometimes with the decision of the court, whereas in the mediation the parties are the ones who make their own choice of decision and are often satisfied their results. Mediations are the most well-established and authenticated process which is well established in most of the common law jurisdictions.it can prove to be a most effective remedy to resolve a wide range of disputes, it often results in high rates of success. Lastly, the mediation process is though flexible and is cost-effective besides being voluntary and non-binding, any mediator under the process cannot impose the decisions upon the parties rather it provides ample opportunities to the parties to make their own choices and decisions.
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