In this article I set out my case for mediation becoming increasingly attractive as of October 2023. Read on to find out why.

For those unfamiliar with mediation is a process, find an explanation here.

There are so many reasons to attempt mediation. Litigation is a slow, expensive, and usually painful process, with multiple unknowns - the main one being what a judge might say in the end. Mediation offers a process where the client or party to the dispute is in the driving seat, able to ask questions, share information, and test different ideas and proposals. All of this is facilitated by an independent mediator who will use their skills and shuttle diplomacy to help parties involved. Approximately 75% of disputes that go to mediation result in a settlement on the day or shortly after. Whilst one can never guarantee a settlement is reached at a mediation, I consider it gives parties to a dispute the best shot of resolving things in one day.

Why might mediation become even more attractive?

One of the unfortunate facts of litigation is that even if you win at trial and are awarded your legal costs, these will be assessed down by the Court (never up!). The bottom line is that even in your best case scenario, you take a hit in the shortfall of costs actually incurred but not recovered.

New rules are coming in to extend the regime of fixed recoverable costs. This means that far more cases are going to have the amount of costs that you can recover from your opponent fixed according to a complex series of rules and tables. This will be the case for claims up to £100,000, with a few exceptions. Whilst there will still be ways to enhance the amount recovered, there is inevitably going to be a more significant shortfall in the amount of costs recovered. So, the best-case scenario for parties involved in litigation is about to get worse.

All this to say, the idea of an independent facilitator coming in to help the parties and their lawyers invest time and energy in solving the problem in a single day, has surely got to be more attractive. Yes, there is a cost involved in arranging the mediation, paying the mediator as well as the lawyers for the work involved. However, this is usually going to be a relatively small percentage of the overall costs of taking the case all the way to a trial.

If you are involved in a dispute and no one is talking that mediation, now is the time to think about it.

This article was written by Toby Walker, head of dispute resolution at Allan Janes and also an accredited mediator. Toby mediates in all kinds of civil disputes.  Toby can be contacted on 01494 893512 or by email.