Dealing with a legal dispute is something that most of us only do a few times in our lives.
But when it happens we are caught into a maze of legal terminology, hostile actions and rising costs.
On this page we look at a wide range of legal and personal disputes which can be approached through mediation. This list is not exhaustive – mediation can be used in many types of dispute provided both the parties agree.
Mediation allows you to resolve your problems by finding a solution that works for both of you. An impartial and trained person – the mediator – helps the two sides find an agreement.
We can offer a free 30-minute telephone consultation if you want to discuss your problems in confidence.
Please note that we cannot help with Family Mediation – divorce, separation and child custody issues – although there are many mediators trained in this field.
When is mediation particularly useful?
You should especially consider mediation when
- Reaching an agreement quickly is more important than going to court
- You want to maintain an ongoing relationship with the other party
- Confidentiality is important
- You want to avoid large legal bills
Professional negligence and personal injury
Medicolegal disputes and claims against hospitals and Trusts are on the increase. Official NHS figures show that £2.4bn was paid out on clinical negligence last year. Lawyers and legal costs accounted for up to 20% of this money.
But only 4% of patients who suffer adverse effects make a claim against the NHS. Why so few? For some of them then getting funding to pay for their increased care needs – for example long-term rehab or nursing – makes reaching a financial settlement essential.
But many claims against the NHS are much less focussed on money, and are much more concerned with:
- Getting proper and accurate information about what actually happened
- Ensuring that adverse incidents are properly investigated
- Getting a proper apology
- Taking action against poorly-performing hospital staff.
The NHS gets criticised for acting over-defensively, refusing to admit blame, and for dragging out legal disputes unnecessarily. The early use of mediation can help, by facilitating confidential, honest and patient-centred discussions that address the true interests of the parties.
If there are suspicions of negligent, substandard care or poor performance, especially by an individual healthcare worker, then it is tempting to think that a day in court, where all the evidence is presented to public scrutiny, would force the hospital to ‘do something’. However mediation may still be the best approach. We have written more about this here.
Mediation produces more meaningful and cost-effective outcomes, improves the experience for both the complainant and the NHS staff and reduces the likelihood of costly and lengthy legal processes.NHS England.
End-of-life treatment and Intensive Care
Sometimes health professionals and families cannot agree about treatment of a patient with a serious or life-limiting illness. There may be religious, cultural or ethical differences. If these disagreements cannot be resolved, a legal case can result, with a random judge deciding what is right or wrong.
Medical mediation can facilitate open and honest discussions in these very difficult and emotionally-stressful situations.
Richard has worked in the NHS since 1979 and has been involved with improving healthcare for patients. He has been lead for Quality Assurance and Audit, was the Vice-President of the Royal College of Anaesthetists, and has led enquiries for Trusts and the Coroner. He appeared on television following the case of a patient who woke up during an operation.
Property, tenancy and neighbour disputes.
Property disputes – with vendors, estate agents, landlords and tenants – can be protracted and unpleasant. Life sometimes seems to go on hold while these problems drag on, and the legal costs can rapidly escalate.
Disputes with neighbours over noise, smells, parking and property boundaries can be especially stressful and all-consuming. Issues around party walls and common areas, such as shared gardens and hallways,
Landlord deposit disputes are hard because they come at the end of the tenancy.
Richard has been part of the Mediator Network project with the Property Ombudsman and has helped clients reach a fair and amicable solution without going to court.
Buying a flat with my sister
Two sisters purchased a flat in London as an investment. They did not have a written agreement as to how the property would be divided up when they came to sell it. The amount that each of them paid towards the deposit was unequal. For several years they lived there together, then one of them moved out and a tenant moved in.
Fifteen years after the original purchase one of the sisters decided she wanted to sell the flat and take out her share of the money. The other sister did not agree on the value of her share, and refused to budge. Lengthy and highly-detailed costings produced by the two did not tally with one another.
Although on the face of it this was a simple calculation involving expenses and costs, the relationship between the two sisters became of overwhelming importance.
Intellectual Law, Music and Entertainment
“Where there’s a hit, there’s a writ”
Sadly, there is a grain of truth in this. The chasm between musicians and the music business, and the high sums of money and risks involved, have created a culture where litigation is far too common.
There are signs that this is changing. The World Intellectual Property Organisation, the global forum for Intellectual Property (IP) services, is actively supporting Alternative dispute resolution and mediation.
In the Music and Entertainment business too there are moves towards using mediation. We have written a fuller guide to this.
Is mediation legally binding?
The outcome of mediation can be as binding as you want it to be.
Neither party can be forced into mediation. It is a consensual process, both of you have to agree to take part. Once the process starts then anything that is discussed is both confidential and without prejudice. This means that if the mediation fails to produce a satisfactory outcome then any concessions or offers made by either side are no longer valid. Without Prejudice implies that although each party is seriously attempting to reach a solution they are not prepared to concede any part of the case just yet.
When a mediation succeeds, the two parties sign a legally-binding Mediation Agreement. Lawyers, who can be present throughout the mediation if necessary, can assist with drafting this. The Mediation Agreement is a contract between the two parties setting out their agreed solution, including any particular points of detail that either thinks is important. Confidentiality and privacy may be a key aspect.
Mediation can solve a thorny problem but can maintain a good business relationship in the long term. In particular it can restore fractured relationships, and allow people to resume working together amicably.
When should we consider mediation?
Ideally mediation should start early in a dispute. But in practice that never happens. Both parties to a mediation start off thinking they have an unbeatable case, they can expect to have all their demands met and that the other side will capitulate. It takes a little time for both parties to realise that is not the case. And it sometimes takes the threat of legal action, with a court-imposed deadline, to force one of the parties to take mediation seriously.
Mediation can take place at any time – even on the day of a court hearing. Sometimes the courts will order the parties to attempt mediation before the case can be heard.
Lawyers can be reluctant to recommend mediation when there is a big gap between the parties – if one side is intransigent or refusing to compromise then mediation might seem futile. Yet paradoxically the opposite is the case. If the two sides were close to a compromise then they wouldn’t need either lawyers or mediators and they would have found the solution themselves.
- Money, financial and commercial disputes
- A step-by-step guide to Civil mediation
- Questions about mediation
- Mediation lets you keep control
- Mediation, professional reviews and negligence
- Mediation in the entertainment industry