Mediation: The 'Right' Result, or One you can Live with?
May 11, 2009 By Burges Salmon LLP
Disputes are a fact of commercial life, now more so than
ever. But the price of pursuing the 'right' result before a
judge or arbitrator based on your adviser's legal analysis
of the dispute may be too high when irrecoverable legal
costs, the risk of losing, management time and the
damage such a process can have on a commercial
relationship are taken into account.
ever. But the price of pursuing the 'right' result before a
judge or arbitrator based on your adviser's legal analysis
of the dispute may be too high when irrecoverable legal
costs, the risk of losing, management time and the
damage such a process can have on a commercial
relationship are taken into account.
Mediation can be an effective alternative method of
achieving a result that both parties can live with, and
one that avoids the downside of formal dispute
resolution. The process also has the advantage of
being supported by the courts; in fact, if you don't
have a go at mediating your dispute, the chances are a
judge or arbitrator will suggest you do.
Mediation is an entirely voluntary process which
involves the parties to a dispute setting aside a day or
two for the key decision makers to discuss and
hopefully settle their differences with the support of a
mediator.
The day starts with all parties together in a room with
the mediator. Each party outlines their case (based on
case summaries exchanged prior to the mediation)
and what they perceive to be the key barriers to
settlement. The mediator will ask questions to clarify
his understanding of the parties' positions and invite
the parties to do the same. The parties will then go to
separate rooms where they will be visited alternately
by the mediator who will seek to identify ways of
'closing the gap' by challenging aspects of their case
and/or by encouraging them to consider the
alternatives to settlement. This series of private
meetings may go on for a long time; the author of
this article recently participated in a mediation that
lasted 24 hours straight before a settlement was
reached! If agreement is reached, it should be set
down in a legally binding agreement which will be
signed by the parties on the day.
Following mediation, parties sometimes feel they
have given too much away. But when the price of
achieving a settlement is compared with the price of
pursuing the 'right' result, it is often a price worth
paying.
ABOUT THE AUTHOR: Burges Salmon
Burges Salmon provides legal advice to national and
international clients, individuals and organisations,
across a range of practice areas and industry sectors.
Copyright Burges Salmon LLP
More information about Burges Salmon LLP
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
achieving a result that both parties can live with, and
one that avoids the downside of formal dispute
resolution. The process also has the advantage of
being supported by the courts; in fact, if you don't
have a go at mediating your dispute, the chances are a
judge or arbitrator will suggest you do.
Mediation is an entirely voluntary process which
involves the parties to a dispute setting aside a day or
two for the key decision makers to discuss and
hopefully settle their differences with the support of a
mediator.
The day starts with all parties together in a room with
the mediator. Each party outlines their case (based on
case summaries exchanged prior to the mediation)
and what they perceive to be the key barriers to
settlement. The mediator will ask questions to clarify
his understanding of the parties' positions and invite
the parties to do the same. The parties will then go to
separate rooms where they will be visited alternately
by the mediator who will seek to identify ways of
'closing the gap' by challenging aspects of their case
and/or by encouraging them to consider the
alternatives to settlement. This series of private
meetings may go on for a long time; the author of
this article recently participated in a mediation that
lasted 24 hours straight before a settlement was
reached! If agreement is reached, it should be set
down in a legally binding agreement which will be
signed by the parties on the day.
Following mediation, parties sometimes feel they
have given too much away. But when the price of
achieving a settlement is compared with the price of
pursuing the 'right' result, it is often a price worth
paying.
ABOUT THE AUTHOR: Burges Salmon
Burges Salmon provides legal advice to national and
international clients, individuals and organisations,
across a range of practice areas and industry sectors.
Copyright Burges Salmon LLP
More information about Burges Salmon LLP
View all articles published by Burges Salmon LLP
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
