Life is complex and complicated. The same applies to the parties and the issues involved in a dispute. The legal system does much to make things wrong or right and creates winners and losers. In many situations this is not the right approach as it either fails to address the core of the issue or grievance or favours the party with the most leverage and that includes financial. Disputes arise out of the life conditions surrounding the parties and mediation can assist in addressing core needs and wants that have not been addressed. Mediators help in this process by individually, and confidentially, examining the needs, wants and grievances of the different parties to the dispute and then looking for common grounds and preferred outcomes beneficial to both parties.
The skill of the mediator is to remain neutral although bringing his intelligence by being entirely present in the process. This means that although the mediator will be aware of the issues – there is space created in the mediation for innovation to emerge with regards to a solution, which both parties can agree to. The mediator assists in the facilitation of a solution and / or reconciliation.
Indeed, many jurisdictions now strongly encourage mediation before taking a case to trial and some courts have a discretion to modify costs awards when a party has failed to mediate (Burchell v Bullard EWCA Civ 358).
Mediation recognises that most disputes have legal, commercial and personal issues attached to them and as such they require solutions beyond the law. Thus, mediators can, as opposed to judges, accommodate to all of those needs. Below is a comparison of how the outcome of a dispute can differ significantly depending on the chosen avenue of the parties:
A and B has had a fall out as A no longer wants B to use his photographs in the production of a film.
Dispute taken to court:
- A sues B for copyright infringement.
- After six months’ litigation the court grants A an injunction against B from using the photographs in the film. A is also compensated with a few thousand pounds.
- The lawsuit means that A’s photographs will no longer be used in B’s film that could have made the photographs internationally renowned. A and B will also never work together, a collaboration which was beneficial to both parties due to A’s wide library and B’s world renowned films.
- Further, as court cases are public A’s reputation has been tainted as being a litigious character and he is having trouble licensing out his material to other production companies.
- Similarly, B has come across in the media as a company which dishonestly takes others’ material without their consent; artists now approach the company with caution.
- The case has also left both A and B with thousands of pounds worth of legal fees.
If the dispute was addressed through mediation:
- A and B agrees to mediate before going to trial to try to resolve their dispute.
- During the mediation the mediator discovers that A finds the commercial and legal elements of the dispute irrelevant; he just wants a special thanks in the end credits for supplying the photographs and an apology from B for underestimating the sentimental value of the photographs.
- The mediator then finds B weary of time and money as the deadline for the release of the film is approaching and they have gone over budget. B wants to get rid of the legal issues as quickly and as cheaply as possible.
- Following a two-day mediation A is content, having received both his apology and recognition in the end credits. B Is also pleased as the dispute cost him nothing other than the mediation fees. A and B further agreed to having more open conversations moving forward; B will always ask A about the sentimental value of the provided material and in return A will charge less for its use and reproduction.
- The result of the mediation process saw two parties agreeing to terms they were both pleased with. Furthermore, no media attention was attracted as mediations are confidential and lastly, their commercial relationship will continue to prosper.
Ruby Sandhu is an accredited mediator, for more details and to book a mediation click here