Mediation is a voluntary process for resolving disputes, where an independent person (the 'mediator') assists the parties to reach a settlement.
Unlike other forms of dispute resolution, such as litigation and arbitration, where the judge or arbitrator decides the outcome, the parties retain control and, with the help of the mediator, decide the outcome for themselves.
Over the last 10 years mediation has become increasingly popular as an alternative to litigating in the courts. The latest evidence suggests the current size of the civil and commercial mediation market as being in the order of 9,500 cases per year, representing a year-on-year increase of 9% pa in the last few years (1).
Mediation - key principles
- Mediation is a voluntary process
The parties are free to enter into mediation just as they are free to end the mediation at any time. They agree to enter into mediation in good faith to attempt to achieve a settlement.
- The mediator is independent
The mediator acts as a neutral facilitator of a resolution; she/he does not adjudicate the dispute or impose any decision on the parties as would a judge or arbitrator.
- Mediation is confidential and without prejudice
No communications between the parties in the mediation proceedings can be disclosed outside of the mediation without their agreement and the parties cannot rely on them in any subsequent proceedings.
- Mediation does not guarantee a successful outcome
If the parties are unable to find agreement on all of the issues they can decide to go to litigation or arbitration.
For GP partners in dispute with each other, mediation can offer considerable advantages over going to court.
You can avoid the risks and costs often associated with court proceedings. Also, court fees continue to rise. For claims exceeding £10,000, the court fee is 5% of the value of the claim. For claims exceeding £200,000, the court fee is £10,000. There is currently a consultation process to raise this court fee further to £20,000.
Court proceedings can take months or even years to conclude because they are governed by prescriptive procedural rules and constrained by the courts' overstretched resources. Mediation can lead to a successful resolution within a relatively short time frame.
Unlike with court proceedings, you are in control:
- You decide whether to mediate.
- You can choose the mediator (you would not be able to pick your trial judge).
- You determine who should attend the mediation from your side (their presence could send signals to your opponent – you will want to make sure they are the right ones).
- You decide where the mediation should take place.
- You get to have your say and influence the outcome of the mediation (unlike in court proceedings, where witnesses are usually constrained to 'examination in chief' and 'cross-examination' on the legal issues by lawyers).
Mediation is flexible and empowering. You can wrap up wider business issues, which would not necessarily be covered by court proceedings. The parties have complete discretion to resolve all of their differences by finding a common solution from a range of possible outcomes and even possibly develop a future business relationship together.
In that respect, mediation can be very constructive, whereas court proceedings can be destructive since their adversarial nature only allows a 'winner' and a 'loser' and often all parties lose on account of the time and expense involved. The court often has no real interest in whether the parties have any business relationship going forward.
There has been a significant move towards mediation in recent years. The courts increasingly 'encourage' parties to try to avoid court proceedings and engage in mediation. This 'encouragement' towards mediation has a potential downside to it – the court has the discretion to vary the usual 'loser pays' rule for those successful litigants who refuse to engage in it.
There is a real legislative shift towards mediation rather than court proceedings. From 1 October 2015, new Alternative Dispute Resolution for Consumer Disputes Regulations will come into force.
These Regulations will require all UK businesses selling goods, services or digital content to consumers in the EU to adopt a mediation policy (using mediation as a first port of call for resolving disputes with its customers) and amend their websites and terms and conditions to refer customers to it.
Mediation is here to stay and whether you're a GP partner or practice manager it's vital to understand how this approach works and be prepared for the eventuality.
Read our tips for a mediation strategy
How we can help you
If you are a practice in dispute, BMA Law offers a fixed fee mediation service at preferential rates for BMA members.
We are an independent law firm established by the BMA, offering expert, cost-effective legal services. Unlike other law firms we operate on a not-for-profit basis - reinvesting any surpluses back into services for doctors.
Contact us for more information
Tel: 0300 123 2014
Email: [email protected]
(1) CEDR, The Sixth Mediation Audit, May 2014
Guidance by Andrew Brown, BMA Law mediation expert