Are you, at this moment or about to be, in an out-right dispute with another party?  Maybe it is with a colleague, a family member, a customer/ supplier, an employee/ employer, a tenant/ landlord, etc.? You and your legal advisors are planning your strategy and options? Here is an option worth bearing in mind: Mediation.

 Parties to lawsuits often do not fully comprehend the litigation process or what a financial and emotional roller-coaster ride they have just strapped into.  It may slowly begin to dawn on them after they have gone through the financial and emotional drain and the pain of preparing affidavits, engaging in costly motions in court and all of the various tangential subject matters and legal wranglings, at which point the hazy realization that there is a very long and expensive road ahead may finally start to come into focus.

Many people enter into litigation with very high expectations of winning, but even cases with good prospects of success have to be pushed and prodded all the way to judgment, which not only has a negative impact on the litigants’ bank account, but also on their stress levels, personal relationships and business lives.  At some point along this road the parties may invariably begin to question themselves as to their real chances of success or the true cost of the trial, at which point they may begin to wonder about the possibility of settling the matter.  Since ninety-five percent of all lawsuits settle before trial, it may be a good idea to see what options are available to resolve the dispute sooner rather than later.

This is where Mediation comes in.   Simply put, mediation is a structured process whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute, with the assistance of a mediator.  The mediator is expected to be effective, impartial, independent, and having had formal training and experience.

Mediation is appropriate for resolving most types of disputes and some of the key features which make it attractive are:

Cost – The cost of mediation is significantly lower when compared to a trial and what is involved leading up to it.  Just one court appearance by a lawyer dealing with a matter may be more expensive than the entire mediation.

Satisfying – Under the litigation process, parties may feel as though they do not have the opportunity to be fully heard as their lawyers present their case in court and they may never have the freedom to raise issues which to their mind are central to resolving the matter.  In some situations, mediation is the first real opportunity for disputants to meet and articulate their viewpoints. In mediation, the parties are active in resolving their disputes and in finding solutions which will work for them.  This increases the likelihood of full compliance, gives each participant the feeling that they have arrived at a resolution, which is best for them and may as a result save relationships.

Confidential – Mediation is confidential in that any discussions with, or materials developed by, the mediator are not admissible in any subsequent court or other contested proceeding. The process is administered with a view of creating a safe harbour within which the parties can be free in their discussions without the worry of what they say coming back to haunt them at a trial, should the mediation not succeed.

Voluntary – In the BVI, most Mediations are Court sanctioned which means that the parties are obliged to attend, but the process is voluntary in the sense that the parties must be willing to work together to reach what they perceive is the best agreement for them.  Nothing can be imposed on a party to a mediation as the decision making power rests directly with them.

Guidance – As most mediated agreements usually contain legal issues, mediators need to encourage the parties to have any agreement reviewed by independent legal council prior to signing.  This is not so much of an issue in the BVI as usually each party’s legal council is present during the mediation session.

Neutrality – The mediator has an obligation to assist each party equally and cannot favour the interest of one party over the other or try to influence a particular outcome.  Mediators need to address openly and freely any issues of bias whether real or perceived in the discussion with the parties and if these issues cannot be dealt with to the satisfaction of the parties then the mediator should withdraw and have the parties select another mediator.  The role of the mediator is to assist the parties reach a voluntary agreement that they are happy with and not one in which the parties have been coerced or intimidated into signing.

At the end of the day disputes are between people who are driven by their emotion, their sense of loss or their need for justice.  Going to trial will not always satisfactorily deal with any of these issues as there is the very real possibility that neither a judge nor a jury will see the facts the same way as the disputants. The best opportunity that the parties have of feeling that justice was served would be where they arrive that a settlement through mediation on terms that they help achieve.

Merely wanting to settle a dispute would not result in its settlement.  It has to be actively worked on and success depends largely on the parties’ willingness to participate and their understanding of how the mediation process is intended to work.

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