If faced with the decision to litigation or mediate, it is therefore worthwhile considering what you want to achieve and your negotiation strategy as well as your future plans.
Having to hand the answers to the following questions will assist:-
- How much will it cost to a) take the case to Court b) to mediate?
- How long will it take to a) get a court hearing or trial? b) a date for a mediation?
- Is your opponent likely to agree to mediate before you issue court proceedings?
- What plans do you have over the next few month/years and how could these be impacted by a) court case? b) a mediation?
- How will you fund a) a court case? b) a mediation?
- If you are a company, who else within the business may need to be involved in the case and to what extent will this distract them from their current job? Will this be cost to your business?
- Are there solutions available to settle the dispute that a court could not award that may be acceptable to both parties?
- What are the risks a) of litigation and taking the matter to court? b) of mediation?
Costs are often a factor in this decision making. Even a successful claimant is unlikely to recover all of their legal fees from a court case. If the defendant opts to go into administration to avoid paying a judgment debt then the likelihood is that the neither the judgment nor the costs will be paid and the proceedings would have been an expensive option. The successful claimant could also face costs assessed by the Court and find those costs reduced to a recovery rate potentially ranging between 60-85% of the fees incurred and paid. All of a sudden, the decision to place the issues before a Judge becomes costly not only in terms of time and energy but also financially too.
Being about to create your own bespoke settlement at mediation is a great opportunity for those seeking a resolution which can potentially accommodate everyone’s circumstances. A Judge is making a decision and instead the parties use the facilitation skills of the mediator to find their best alternative to court proceedings. The creativity of parties not the rigidity of the law dictates the settlement.
A mediation can be organised quickly without waiting for a Court timetable and the costs can be much less than those incurred in taking a case to court. It is flexible and the parties can decide the issues that are relevant to them as part of their decision making process.
The court process is not a flexible one and follows a strict set of rules. Mediation is flexible and can work around everyone’s needs and interests.
The decision will be based upon different sets of circumstances for all concerned. What is right for one might not suit another. What is correct is that mediation will take place much more quickly that a court case and when most never seem to have enough time, that can be very important.