Mediation - an alternative to court delays
I had a very interesting conversation last week with Fola Alade a mediator in Nigeria (https://fotefapartners.com.ng/) He noted that the Covid crisis had put even more strain on already overworked court systems which had led to an increased interest in mediation. Of course, this is global issue and all courts will be facing the same problems of a backlog catch up after lock downs and shortages of staff as some people remain shielded at home.
While there will be some who will be happy to kick a dispute into the long grass and so will be content to wait on the courts getting round to them and in some cases that will be a cynical tactic to avoid settling a certain liability, there are others who will be keen to get the matter resolved. Some businesses of course simply cannot afford a long delay in sorting out a dispute. Mediations can be set up within a couple of weeks and usually involve just one, often long, day so are an obvious option.
Telephone mediation has been used for a number of years now but many mediators and indeed parties have not been enthusiastic about that as a process for complex disputes as without seeing body language it can be hard to pick up nuances during the discussions. This of course remains an option but ever more sophisticated digital technologies and greater comfort using such platforms during lock down means that there is now greater openness to considering a Zoom type mediation where a physical meeting might still not be possible.
Covid of course has not just led to court room delays but has also created additional disputes. Lockdowns have led to non-performance of contracts. In most cases the parties have managed to sort something out between them and generally we are seeing a lot of goodwill and pragmatism in finding solutions. Everyone agrees that the outcomes are imperfect but, on the whole, we are seeing workable outcomes. Clearly there have needed to be compromises and the solutions that may have been built into the contracts have often been unsuited to the unprecedented circumstances that we have faced. For example, contracts are often written to allow one party to cancel where circumstances arise whereby the other party cannot perform through no fault of its own but while that is helpful where the non-affected party can go out and obtain those goods or that service from a third party in a situation where you specifically need performance from the original party as is often the case in pharmaceutical manufacturing or where there simply are no other available suppliers then cancelling is not really where either of you want to be. If the parties are struggling to find a workable compromise or simply want to move at speed and not spend time sending letters backwards and forwards mediation is that speedy option and will generally be very cost effective.
So, what sort of disputes might be suitable for mediation? Generally most commercial disputes between solvent companies can be mediated even when the parties seem quite far apart in their thinking however in the current climate we would suggest that manufacturing disputes and anything that is time critical or lies on a critical pathway should be considered for this sort of process.
If you would like to discuss how mediation might work for you please contact me on firstname.lastname@example.org or on 0131 202 6527