Years of cuts in funding to the court system have resulted in delays, made worse by the Covid-19 pandemic, but the option of mediation represents a welcome alternative. As we at SHU Law step up our own mediation offering, Ruth Dawson debunks some common mediation myths.
Myth 1: Mediation means I have to speak with the other side
The reality of litigation is that it is often emotionally charged and complex. One of the beauties of mediation is its flexibility: short of a few rules regarding mutual respect, if you don’t want to do something at mediation, you don’t have to. Mediation can involve a joint meeting, but it doesn’t have to, and its success does not depend upon a joint meeting.
Myth 2: Mediation always involves compromise
While the purpose of mediation is for participants to come together and keep an open mind about ways to resolve a dispute, you do not always have to compromise what you want in order to get there. There is no penalty if a mediation is unsuccessful, and it doesn’t affect your chances of success if you return to the courtroom, so what have you got to lose? What is more, in court, remedies are limited to financial damages, but mediations can be resolved in any number of ways and mediation allows an element of creativity in finding solutions which you just don’t find in a courtroom.
Myth 3: Mediation doesn’t work
This myth perhaps stems from a fear of the unknown, but according to Centre for Effective Dispute Resolution[1], on average 86% of cases settle at mediation. Of course, a “successful” mediation is not always one in which the matter settles; you can succeed in making progress in a case without a settlement, so in reality the 86% success rate will be even higher.
Myth 4: Mediation prevents the parties from “having their day in court”
Often parties are entrenched in their positions and, largely due to the emotion of the case, are convinced that they are “right” and that the other side are “wrong”. Often, they are convinced that they will be vindicated by the Judge and they cite this as their reason for wanting their day in court. In reality, there is not much scope in civil cases for the emotional side of cases to be heard and the trial process rarely permits a party to tell their story in the way they would like to, as the court is interested in the relevant facts only – which may amount to only a small part of the history of the dispute. This is where mediation comes into its own: in a mediation, participants are encouraged to talk on a more personal level and tell their story in a way which would not be possible in court.
SHU Law is a not-for-profit ‘teaching law firm’ fully regulated by the Solicitors Regulation Authority and associated with Sheffield Hallam University. Please contact us on 0114 225 6666 if you would like us to consider mediating in your dispute.
[1] CEDR’s 2018 study “The Eighth Mediation Audit”
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