Finding a resolution

A dispute is looming, or is already in full swing. Money or assets are at stake. The neighbours are encroaching on the boundary wall. The business is pursuing an unpaid debt. The landlord is not adequately maintaining the property.

Who do we usually turn to at times like this? Probably a local solicitor or in-house lawyer.

Why? Because they are usually the people who offer good advice and can be trusted. This holds for most types of dispute - commercial, family, or even community.

But the downsides are usually the length of time is takes to litigate and the cost. Also the fact that relationships usually become damaged during litigation.

One alternative is mediation, which is a way of resolving disputes more quickly, more cheaply and less traumatically than other forms of conflict resolution, particularly litigation. Plus, you can keep the solicitor involved if you choose to, as most people do.

The Oxfordshire Mediation Group was set up in May and provides a service for the Oxford and Banbury courts and others in the Thames Valley area.

What does this mean for the person involved in a commercial or civil dispute which is being pursued through the courts?

At an early stage in the litigation process, the parties will receive an allocation questionnaire where they will be asked whether they would like the opportunity to resolve their dispute by non-legal means, such as mediation.

If they both tick the box, the dispute will then be referred to OMG, a local body, or the National Mediation Helpline, which will provide an expert.

The parties are usually given three hours for the mediation, and it usually takes place in the court or a solicitor's office.

So what is mediation?

The best definition is Helping people have difficult conversations in confidence'.

The person doing the helping is someone trained for the work who has no personal involvement in the dispute. Unlike solicitors, mediators do not take sides and have no vested interest in the outcome. It is up to the parties to negotiate their own resolution, with help from their solicitors or legal advisors if they choose.

What does mediation involve?

One of the reasons we do not hear much about mediations is because they are very private.

They take place in discreet surroundings and are always governed by confidentiality agreements.

If the parties reach agreement, and an average of 75 per cent of mediations end in settlement, one of the guiding principles is that settlement details remain confidential.

The most that the parties are permitted to say to the outside world after the event is that satisfactory negotiations have been concluded by all parties'.

What happens during mediation?

The parties come together in the same building and hold joint meetings with each other and/or private meetings with the mediator.

At some mediations the parties elect to spend all the time talking with each other. At others there will be joint meetings with the other side and private meetings with the mediator.

Occasionally, mediations take place without the parties even seeing each other and the mediator spends the time shuttling between them.

Mediation is very flexible and it is largely up to the parties to decide how they should be run.

It works well because it is usually the first time people have had the opportunity to speak to each other since the litigation started.

Mediation offers a safe and controlled place to do this. Some disputes that come to mediation may have been simmering for ten years or even longer, so emotions may be high and positions entrenched.

Second, the parties who come to mediation decide and negotiate their own resolutions - not a judge - so there is no winner and loser.

Also, when the parties decide their own settlement they can allow themselves finally to put the dispute behind them and get on with their lives.

Litigation, which involves one winner and one loser, usually does not offer that.

Why is mediation different from straight-forward negotiation?

The mediator has to be an active' listener - paying attention to body language, as well as the spoken word. Frequently people say one thing and mean another. Mediators need to be diplomats at times, and at others, brutally honest. Mediators also need to be trained in negotiating with the parties and taking offers from one side to the other.

What do mediators get out of it?

Frequently, it is the look of relief on the faces of the people at the end of the mediation when they realise that the problem that has been plaguing them for years has finally gone away - and that they are the ones who decided the settlement terms.

Sometimes people are so surprised to reach an agreement, they cannot take it in at first. Whatever the case, they can get on with their lives.

National Mediation Week runs from October 9-13. For details contact Russell Porter of the Oxfordshire Mediation Group on 01865 793736 or the National Mediation Helpline on 084560 30809.