Could Mediation be Right for You?
What is Mediation?
Mediation is a way of resolving disputes without the need to go to Court or Arbitration. The focus of Mediation is allowing the parties to enter into a discussion. This discussion is facilitated and structured by the Mediator. The Mediator is not like a Judge. The Mediator will not impose a decision on the parties. Any resolution must be reached by the parties voluntarily. Mediation is suitable as a mechanism to resolve disputes in almost all types of cases.
Mediation has many advantages over Court and Arbitration.
- The Parties Decide the Outcome
Even if you consider that you have a strong case, there is always a risk in litigation that things do not go the way you hoped. In Mediation there is no risk of losing the case. If you cannot agree on a settlement you can live with you are free to walk away. If you choose to walk away, whatever was said during the Mediation is confidential, and cannot be used in any Court proceedings or Arbitration.
- Less Stress
Giving evidence in Court is stressful. It is a formal setting. The questioning is invariably combative and adversarial. In contrast, the approach in Mediation is much more relaxed, with an emphasis on discussion and dialogue. No evidence is taken, and no one is cross examined. There is no Judge and no court room. Also the fact that you cannot lose the case at Mediation means that the atmosphere is much less highly charged than in Court Proceedings.
- Save Time
Court proceedings take time. You have to prepare the case, file the papers, and then wait for the hearing date. The hearings themselves take up valuable time that can be better used. Even after the hearing is concluded there is always the possibility of an appeal. Mediation is much faster. It requires only that the parties agree to Mediate, and then appoint a Mediator and a date. Most Mediations last less than a day. If an agreement can be reached it can be formalised in writing, and is then enforceable as a contract.
- Save Money
Court proceedings are expensive. For most court cases the parties will want to engage a lawyer to represent them. Lawyers can still have a valuable role in mediation, but there is also more scope in smaller cases for parties to proceed without them. Even if you engage a lawyer, the cost is less for Mediation as opposed to engaging them for trial. In addition, if you lose at court you will also probably be asked to pay the legal costs of the opposing party, which can be considerable.
- Maintain the Relationship
Where parties have faced each other in court there is usually a complete breakdown in the relationship. In Mediation, the emphasis is on reaching an agreement, and as such there is a much stronger chance of building or maintaining the relationship between the parties. The fact that it is not adversarial means that important business and personal relationships can be saved.
As a Qualified Mediator I can recognise the advantages of this style of dispute resolution. It is already popular and effective in the UK and Australia, and is gaining popularity in China. It will undoubtedly become increasingly used here in Malaysia too.
Barrister England and Wales
Adjudicator and Mediator of MESSRS RAVINDRAN