Winners & Losers
Updated: Jan 17, 2019
Lawyers who think their clients have ticked the ADR process box by saying their clients have tried ADR in their own negotiations without a mediator, just don’t get it.
The range of help mediators offer will vary. Just engaging one is in itself a welcome and positive relief to parties and their legal advisers. Both have now an ally they can work with in common cause, to get a settlement.
How to avoid litigation
Unless you are in the arms business or a litigation lawyer being paid by a client on the hours you spend, conflict is an unprofitable woeful business and costs us all dearly. So how do you avoid it? The way you avoid it is to invest in mediation and other alternative dispute resolution processes, so life becomes so much less of a lottery.
The need for litigation is to give access to justice. Justice in our jurisdiction is traditionally somewhere on the spectrum between laxed at one end and zero tolerance at the other. So how badly do you need it? Most people don’t - they can resolve disputes by discussion.
Further recent efforts to deter the parties going to court have been to increase the court fees. In an effort to counter-balance this, new proposals for cases up to £25,000 will see the parties able to get legal advice direct from the court.
Lawyers are still the go-to profession to establish legal rights. The side effect of that is they have become the gatekeepers of dispute resolution. But once you know your legal rights, arguably their job is done. If they can’t add value by being experts in all the dispute resolution processes, they can’t offer their clients a clear time cost benefit alternative. In such a situation, the client might be better approaching a mediator direct.
Mediators make a difference
Understanding alternative dispute resolutions processes saves clients billions of £s. If you can get a deal between yourselves, fine, but if you fail, don’t make the mistake of thinking that, because you’ve failed in a negotiation, mediation is not for you. Instead, make sure you speak to a lawyer who has actually followed a mediator at work and ask for his or her view of the difference they can make. What they will tell you is that there was an impasse so they couldn’t talk any more, but the mediator, who is trained to overcome log-jams, did so by enabling them to approach the problem from a completely different angle.