The same rules apply to a consent order reached through mediation as an order made through the court, which is that you can’t argue the same point twice. However, whilst it’s not uncommon for a legal outcome to be dissatisfying at least to one party, and sometimes to both, a mediated outcome is more likely to be durable, because it has been reached through a more thorough and humane investigation of the issues. Also, an agreement, relating to what happens if the same problem arises, can be written into the mediation agreement itself.
Sometimes the parties do not reach a final resolution at a mediation. Even in this case, though, they usually settle shortly afterwards, having had time to reflect on all the discussions. Even where this doesn’t happen, the effect of the mediation is almost always to narrow and clarify the issues, which saves time in later litigation.
The cost of a one day mediation is usually around £300 to £1200 per party, depending on time taken and value of the claim. Even an average solicitor’s charges are likely to be in the region of £200-300 per hour, and a case that goes to trial, involving weeks of preparation, experts, barristers … well, you do the math.
A lawyer will look after your interests, so far as your finances, and the constraints of the legal process allow. But they won’t be interested in what’s really important to you in the dispute – what really matters to you – if that doesn’t directly coincide with the legal rights and wrongs. The other party, don’t forget, will have a lawyer who is as much on the side of your opponent as yours is on your side. A mediator’s role is to remain impartial throughout. A mediator is not interested in who has the better case, only in what the parties want to do to resolve it.
If it’s certainty and a binding court order you need or want, then the mediation settlement can be turned into a binding consent order. Legal judgements are very limited in their scope, usually restricted to money, time limits and orders to do or not do something. They are also imposed upon people in conflict by a judge rather than reached by the people who know most about it – the parties themselves.
Entrenched positions, a certainty that one is right, a demonizing or at least a tendency to pigeonhole the behaviour of the other side, is common for people in conflict. In some cases, hearing what the other party has to say may change your mind. In others, they having the chance to hear you might change theirs. I have never known a mediation where the parties have come out of it completely unchanged in their view of the situation.
Again, this is a common concern for people in dispute and there is no denying that often the prospect of this kind of conversation is uncomfortable, even frightening. However, a strong mediator who inspires confidence in their skill and takes charge over the process can soon alleviate most of these fears, and there is always the option to conduct the mediation, effectively, without ever meeting the other party at all. Taking part in the mediation is voluntary at every stage, so you will never be forced to do anything you don’t completely buy into. You can leave or refuse any stage of the process if you choose. That doesn’t mean you won’t be asked to do things, sometimes, that seem difficult or uncomfortable. It’s the mediator’s job to encourage the parties to think about the problem in a new way and the best results come when the parties rise to this challenge.
A sense that nothing will help, that the dispute is too entrenched, that there’s nothing left to compromise over – these are common feelings for people offered mediation. However, it’s very likely that the parties will not have had a chance to discuss the dispute, in a civilized and calm way, with an opportunity to get all their views and feelings across, to hear and properly be heard. It never ceases to amaze how quickly and satisfactorily disputes can be resolved if the parties simply get to talk to each other like human beings.
Lawyers are the traditional route, and probably the first thing you think of when a dispute is brewing, but most people are also aware of the downsides to fighting their battles this way. None are more convinced of this than people who have actually taken legal action. How often have you heard someone at the end of a court case say, I’d do this again, definitely? It’s a common response at the end of a mediation.