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What’s holding back litigation solicitors from early mediation of disputes

09 Feb 2018

An early point of debate was whether this is a local problem to North East England or is it country wide. The consensus was it is country wide.

Mediation has been present in England for over 25 years therefore it should be recognised as a useful tool for advisors to use. Could it be that advisors do not understand mediation as well as they should in that it is a tool that can be used at any stage and not simply left until the court orders its use. If this is the case should mediators take on the task to run short seminars to talk over when to start mediations?

A point made unofficially by the judiciary recently is many cases are being run by the litigants in person. This slows down the process and the individual is not trained in the benefits of mediation so it is refused by them until the courts order it to be tried.

Increases in costs of practices together with increasing work load has meant many cases are being handled by ‘paralegals’ on a day to day basis. Is it the case that the paralegals do not have a wide understanding of mediation with the result when an opportunity occurs they fail to recognise it allowing the case to continue onwards to court.

Disputes generally occur well before the lawyers are instructed. Is the education of surveyors, accountants and HR personnel into the various methods of dispute resolution inadequate. If these advisors were trained in resolving disputes by mediation would they give it a go before aiming for litigation. Similarly in corporate disputes do middle management try to hide a problem they have created, allowing it to escalate before the CEO sends out to the lawyers. If the CEO recognised the benefits and cost savings of mediation would they start by an early attempt before instructing the lawyers?

Many questions and very few answers.