Whereas Litigation is the process in which disputes between parties are decided by the Courts, Mediation is a strand of alternative dispute resolution which allows the parties to decide the outcome of their dispute themselves. This is done by engaging a mediator, who is an entirely neutral party, to assist the parties in negotiating a resolution of their dispute. If the parties reach a resolution of their dispute, a settlement agreement, which is binding on the parties, is signed. If the parties do not reach a resolution, then they can still pursue their dispute through the Courts and the mediation process will not have had any negative effect on the parties’ Litigation of their dispute.
Mediation can work in the resolution of many types of disputes, including commercial disputes and family disputes. It enables the parties to choose a time and place, in private and without prejudice, to try to negotiate a settlement of their dispute with the assistance of a neutral mediator. In assisting the parties, the mediator brings negotiating, problem solving and communications skills to the process, and deploys them from a position of independence and neutrality.
The Mediation Act 2017 came into force in January 2018, which makes it a statutory obligation to consider mediation as an alternative to litigation. Solicitors are obliged to advise clients of this.
If agreement cannot be reached between the parties through mediation, it is still open to the parties to go to Court.
If agreement can be reached though mediation, it can save time and costs.