Mediation: Why are we talking about it now?

The English Courts have recently emphasised and encouraged prospective and actual parties to arbitration and litigation to consider and use extra-judicial tools, and to engage in negotiated dispute resolution, before but also during any proceedings.

In the 2022 edition of the Commercial Court Guide, it deliberately uses the language “negotiated dispute resolution” (NDR) in place of alternative dispute resolution. Commercially negotiated dispute resolution is not an alternative to legal proceedings but is a tool to be used in parallel with anticipated or actual proceedings, and to be kept under review throughout.  

In particular where direct discussions between the parties and their lawyers have proved or are not felt likely to be the most effective option for finding a resolution, mediation can be an extremely valuable tool to consider. It offers a structured but flexible forum for the parties to explore commercial solutions on a without prejudice and confidential basis. A skilled mediator can assist parties in finding ways to bridge what might seem to be insurmountable differences in their positions. 

Clyde & Co has a wealth of experience of mediation in all shapes and sizes, in a wide range of contexts and for all types of disputes. We are well placed to assist you in considering whether and when mediation could be the tool you need, drawing on our experience and expertise to assist clients in navigating the process of mediation, including:

• advising clients on their obligations;
• whether, and how clients should engage in mediation as an ADR;
• choosing a suitable Mediator and guiding and supporting clients through the mediation process if they choose to engage in mediation

To discuss your meditation or dispute resolution needs please contact Richard Power & Anna Myrvang.

Watch Anna Myrvang share her thoughts

** Since filming this recording the important judgment in the case of Churchill v Merthyr Tydfil County Borough Council has been handed down, which confirms that the courts can order compulsory ADR (including mediation). To read our commentary and content on this significant case, please follow the link - The Court of Appeal confirms that the courts can compel parties to engage in ADR.