Talk to anyone who has been through litigation and a trial and they may well tell you the process was cripplingly expensive and the outcome unsatisfactory. Why is it then that people, their companies, and sometimes their lawyers, more often than not, seem to regard any form of mediation as a sign of weakness rather than a sensible first step? Maybe most people want to “win” or prove a point.
If that isn’t true, why is it that so very few disputes going through the Courts are mediated? After all, mediation does work in resolving around three quarters of disputes.
And it is not just disputes that can be addressed. At the very early stages of discussions about a potential dispute, where the parties just differ but have not fallen out, or maybe where parties are trying to negotiate contract terms, a good mediator can help sort things out.
Cost should not be the issue. Maybe parties baulk at the “extra cost” of employing their lawyers to represent them at the mediation. At £200 or £300 per hour it’s easy to see how legal costs could be a deterrent. But of course you don’t need lawyers to tell you what the commercial value of a dispute or particular point is to you; so maybe you don’t need lawyers to mediate?
The cost of mediation itself does vary and the market seems particularly competitive for lower value claims. Per party published rates for the National Mediation Helpline are £300 for a three hour mediation, and £425 for four hours, with additional time at £95/hour. Those rates seem to work as a bench mark for mediator providers. But of course under the NMH scheme you may have little control of the appointment process and risk dealing with a mediator with little relevant experience.
The big national providers like ADR Group (£400 for three hours, £800 for eight hours) and CEDR (£90 to £250 per hour) can work out to be more expensive depending on the seniority of mediator. But even so the cost of the mediator is often relatively low, and the potential cost benefit well worth the investment, compared to the issues to be decided. (All the above rates are as published on 11th February 2011, and are subject to Vat where applicable.)
Some of the smaller providers with lower overheads, like Oxford Mediation, see a gap in the market. They can provide experienced mediators at relatively modest rates.
An important point, often overlooked, is that mediation can be a very flexible tool. What is it you want from the process? Do you want a mediator to just facilitate discussions or to give you an opinion about the rights and wrongs of your position? Most mediations are “facilitative” rather than “evaluative”, but sometimes parties do want to know, from a mediator experienced in their business, where they stand.
Is the dispute just about cash? If it is, then do you want a protracted “formal” mediation or would you rather more of a negotiation just around each party’s “bottom line”? This approach, of just exploring the boundaries of a cash settlement and ignoring the strengths and weaknesses of the parties’ positions, is quick. Because it cuts to the chase, time limited mediation is becoming more popular.
So maybe if your negotiations are stalling, or you are at the start of a dispute, you could think about what you would like to achieve and how, and whether the right mediator could help.