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To mediate or not to mediate? That is the question

View profile for Sarah Canning
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The choice is yours. Decide how to settle a dispute on your terms or pass the decision to someone who doesn’t know anything about your business. What do you do?

The majority of us would want to take control of our future and make a decision based upon our knowledge and the implications for us both in the short- and long-term. Mediation offers those in the business the opportunity to do just that and to make the most of their business creativity and entrepreneurial flair in finding a solution that no Judge could order.Three model figures

The flexibility of mediation provides an excellent opportunity to resolve a dispute. In comparison to the rigidity of litigation, mediation enables the parties to consider in a without prejudice environment what their best possible settlement could be without risk of the negotiations being used against them.

This exploration process has brought together companies that have reached a stalemate during litigation to a point of working together on future projects for the commercial benefit of both entities. The impossible, achieved through careful, thoughtful co-operation in which the interests of both are considered and aligned.

If mediation offers so much it is perhaps surprising as to why more cases have still not moved from the traditional court process to this faster cost-effective option. It could be that mediation is still seen as a forum for only family disputes and yet with a 75% success rate  of commercial mediations settling either on the day or shortly afterwards, is it really a risk and even if it was, surely it is a risk worth taking when compared to the risks associated with litigation?

If you are considering mediation, remember:-

  1. It is confidential.

If your case goes to Court, it will be in the public domain. Unless it is a family case, it will be open for the media to be present. This will limit your ability to control any reports, if at all. Mediation is a confidential process and you have the potential of agreeing a confidentiality clause within any settlement agreement.

  1. You make the decision

The mediator is a facilitator and not there to judge. If an agreement is reached, it will be because you have chosen to settle upon terms that you agree with and find acceptable having factored in everything that is important to you and your business.

  1. Your preparation will be key

It is important to have analysed your position from a number of different angles and considered:-

  • The financial cost of going to court
  • The reputational cost of litigation
  • The management time and investment in a court process
  • The longevity of a court process and impact upon any other future projects and investment plans
  • What outcome would be a good result, an acceptable result and what could push you to go to Court

Sarah Canning is a Partner at Franklins and an Accredited Mediator. For further information either on preparing your case for mediation or indeed to instruct Sarah to mediate a case for you, please contact her email on or call 01908 660966 or 01604 828282.