November 29, 2006
Thousands of businesses and private individuals in Norfolk could escape sky-high legal bills by opting to settle disputes through neutral mediation rather than by all-out war in the courtroom.
Mark Fitch, a partner at Norwich law firm Hatch Brenner, and a qualified mediator, says the system relies on common sense solutions which can greatly reduce legal costs, and also prevent the needless use of valuable court time.
“Everything is becoming geared towards trying to reach a settlement rather than both parties getting in their litigation hired guns and seeing who can shoot the best,” said Mr Fitch. “Litigation lawyers are rebranding themselves, and many solicitors now exist in ‘dispute resolution’ departments.”
Mediation arrived in this country from Northern America over a decade ago, and has increased greatly in popularity as a means of settling all manner of wrangles – from boundary disputes to breach of contract, personal injury or disputed probate. Mediation has been prominent in matrimonial disputes for several years, but the commercial and civil courts are now ensuring that litigants consider fully the option of mediation. The courts will also penalise parties who unreasonably refuse mediation.
As well as being effective, mediation is simple. The two parties are accommodated in separate rooms and the mediator alternates between them in the search for a settlement which can subsequently be given more formal legal status. The mediation process is usually completed in a day, sometimes half a day.
“The two parties can tell the mediator everything about their case – the good points and the bad – and the mediator will not pass on the information he receives to the other side without their express permission,” said Mr Fitch.
“Even with both parties at loggerheads it’s amazing how often the mediator, armed with that information, can assist the parties in achieving a settlement.
“The other good thing about mediation as opposed to a court hearing is that on the whole a judge has very limited options open to him – he can basically find for one of the parties and against the other and that’s it. With mediation you can often bring something else to the table which will satisfy both parties.
“Let’s say, for example, that two people were in dispute over an orange! A judge would either order that one person or the other take the orange; or in some cases he might order the orange to be split in two.
“However, the mediator might discover that one side wants the rind to make a Christmas cake, and the other wants the flesh because he’s hungry. By going through the mediation process, the parties can reach a more flexible settlement by which they both get what they want.”
Mr Fitch has been a solicitor for more than 11 years, and is himself a litigation specialist with particular interest in matters of contested probate, professional negligence, and claims against the police.
He qualified as a mediator last year, and at the age of 36 is one of the youngest members of the Mediators in East Anglia Group. Many mediators are solicitors or barristers, but they may come from many other backgrounds including accountancy, engineering and architecture.
“From my perspective it’s very rewarding,” said Mr Fitch. “Unlike fighting for just one side, I’m now trying to achieve something for both parties.
“It’s over 10 years since the first few mediators qualified in this country, and the results have been so good that the courts have become more interested in diverting a lot of work towards mediation. They are keen to do this because of the cost and the pressure on court and the judges’ time – we are a lot more litigious than we were a decade ago.
“Mediation is really very cheap, comparatively speaking – and the sooner both parties go down that route the better because then they won’t have incurred big legal costs already
