How the Courts are, in practice, actively pushing mediation.
I was instructed on a case centring on a dispute between neighbours. There were all sorts of complex and involved legal issues at stake, including ownership of parcels of land, rights of way and restrictions on how the parties might use their properties in the future. Court proceedings were commenced after a few months of initial wrangling between the parties’ legal representatives.
Rarely have I encountered a dispute where the claimants and the defendants were so entrenched in their positions.
Neither seemed to wish to give very much – if any – ground to the other.
The case was, nevertheless, mediated, not long after the litigation commenced. However, despite two to three hours of discussions and individual, private meetings between the parties and the mediator, it became evident that neither the claimants nor the defendants were able to convince the other of agreeing to their respective settlement proposals.
The case went to trial. Given its complex nature, it was scheduled to last for an entire week.
However, on the very first day of the hearing and, due to the huge costs at stake, the Judge was extremely quick to encourage the parties and their lawyers to spend some time – indeed, as much as they needed – to reconsider settling the matter.
Being an accredited mediator himself, the Judge reminded the parties that, if they could find a way of bridging their differences, this would leave them in control of the settlement terms.
There might be certain agreements/understandings, he said, that they could include in the settlement, which he would be powerless to make (e.g. the precise materials to be used in any necessary repair works).
Settlement discussions began to gather momentum on Day 2. They lasted the whole day and into the late evening. In that time, the Judge had given the parties every encouragement to keep the talks going. Finally, settlement terms were agreed, with repair works, rights of way and land ownership all being covered in a single, written agreement signed by the parties.
The case illustrates the lengths, to which, the Courts now seem to be willing to go, in order to avoid having to determine cases on the parties’ behalf.
I think we will see more and more Judges dealing with cases in the same way, even in the later stages, including at trial.
However, parties should always avoid leaving settlement discussions until the last minute (and a good Litigation lawyer will routinely remind them of this), otherwise, regardless of the final outcome of the case, they risk leaving themselves potentially exposed to picking up not only their legal bill but their opponent’s as well.
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Related article: How mediation offers more creative remedies than those offered by the legal process.
“Let me start by saying that this dispute was complex. It involved 3 parties, instead of the typical 2. There were multiple grounds for dispute and each party required their own language interpreter.” Read on >
The author: John Appleby
