To mark the end of International Mediation Awareness Week, we will debunk a number of mediation myths which have pervaded the legal profession since it was first introduced.
Mediation is something that has been used more frequently by lawyers as a means of resolving disputes without needing to enter the courtroom. There remains an impression of litigation as an area of law that is inherently adversarial, centred around a duel over right and wrong with your legal opponent on the courtroom battlefield. However, the reality is that most commercial litigation disputes are far more emotionally charged and complex than people think, and a gentler touch may yield better results.
As such, mediation has been on the rise in commercial litigation disputes as an inexpensive shortcut to settlement instead of years of costly, acrimonious court action. So what are those common misonceptions or myths?
Myth 1: You must engage in mediation
This is a common misunderstanding when mediation has been offered as part of a commercial litigation case. While it is not widely used compared to family, employment or personal Injury matters, Sheriffs and judges are increasingly referring parties to mediation if they are at odds in the courtroom. However, in Scotland you don’t have to go to mediation if you don’t want to – the process is entirely voluntary. It is not an either/or situation with court action or mediation being the only options – both can be ongoing at the same time.
Myth 2: Solicitors are not allowed to take part in mediation
This is another widely held misconception, that if you have been referred to mediation, you must go yourself and your solicitor is not allowed to be involved in the process. In fact, the opposite is true – your solicitor can attend mediation with you, or they can attend on your behalf. If your position is made clear beforehand and you’re available to give instructions to your solicitor depending on what happens in the mediation, your solicitor can be there for you every step of the way.
Myth 3: You must always compromise in mediation
This myth is not strictly true. While the purpose of mediation is for both parties to come together and be open-minded about other ways to resolve a dispute, you do not always have to compromise what you want in order to get there. If a mediation breaks down and is unsuccessful, nobody is penalised, and this does not affect your chances if you return to the courtroom to resolve matters.
Myth 4: Mediation never works
This one is simply untrue. Many lawyers have provided testimonials about the mediation process and the great results arising out of a few sessions compared to months or even years of litigation. Indeed, the Strathclyde University Law Clinic, used by most of the Sheriffdoms in Scotland, are reporting record figures of referrals this year, despite the pandemic.
One of the major reasons for this is that there are no restrictions on settlement in a mediation – unlike the courtroom, where remedies are often restricted to financial damages, a mediation can be settled in any way the parties wish.
This flexible approach immediately offers a large advantage over the traditional court process, with the added benefit of privacy. The outcome of a mediation session and any settlement terms are private and only known to the parties themselves. This is naturally contrasted with the court process, which can be reported upon in the press if the parties are high-profile and the judgment later being published online.
COVID-19 and beyond
As we have demonstrated, mediation will inevitably continue to play a role in the resolution of commercial litigation disputes. The current pandemic has enabled mediation to become more useful than ever, with disputes being able to be resolved in the comfort of one’s own home while the court process lengthens in response to the restrictions on conducting business.
Given the current situation, it is likely that mediation’s role will grow in importance in commercial litigation disputes and becoming a master mediator will no doubt form an integral part of the litigator’s repertoire in the future.