My first blog in this series looked at alternative dispute resolution (ADR) and set out some context for its use in the UK today to resolve disputes between consumers and businesses (B2C disputes). It looked at the evolution of ADR ending with mention of various European laws and the UKs own Consumer Rights Act. To acclimatise yourself for this second piece you can re-read the first blog here.
Now the scene is set, we are going to look at mediation and some reasons why people don’t mediate enough. Next time round we will spend more time looking at what actually happens at a mediation.
First though I had better explain what mediation is! Mediation is the name given to the process where an individual third party, the mediator, helps the parties to negotiate their own settlement to a dispute or disagreement. The mediator is independent and, in the nicest possible way, has no interest in the outcome – they just want to help the parties to reach a position where they can all walk away satisfied with a solution which stops them having to take further action.
Now, I need to declare some self-interest. I am a mediator and I love mediation. Really really love it. For consumer disputes I believe it is nearly always the integral second step towards resolution of a dispute (the first step always being negotiation).
But meditation doesn’t happen as often as those in the know think it should. Why not?
Lack of party engagement: Often parties in dispute don’t even know mediation exists (one of the reasons I am writing this blog is to make it known to a wider audience). Where the parties do know mediation exists they are either told by a solicitor (often too late on or with some reluctance from the solicitor) or traders are reluctant to engage, and when they do it is often the case that the parties are not sure what it is they have signed up to. Whilst trade bodies and professional institutions nearly always see the benefits of mediation to the consumer and their member immediately, traders themselves are reluctant to take part because of (a) cost – actual or perceived (b) trust and (c) time.
Cost: Probably the most cited reason why businesses won’t mediate, and though the cost can be relatively small (typically £25 – £50 per telephone mediation and £200-£500 for a face to face “small claims” mediation) money is money and if the trader feels they have done nothing wrong then why should they pay (often for both parties)? Cost is also an issue for the consumer. In an age of free ADR with various ombudsman schemes you may feel that you shouldn’t have to pay anything and the trader should pay it all.
These arguments are difficult to disagree with, but I always come back to the same point. If a telephone mediation costs each party £50 and in return you get 3 hours or so of mediators time on the phone use it wisely. Be prepared to compromise and get a settlement so you don’t need to worry about what comes next. If you are not prepared to compromise at all then I would suggest you skip mediation and go straight to arbitration or better still, to an ombudsman (if there is one available to you – in sectors like retail and aviation you can go to The Consumer Ombudsman or The Retail Ombudsman, whilst the Financial Ombudsman Service is available for unresolved financial services complaints). I will be discussing arbitration and ombudsmen more in the fourth and fifth blogs in this series.
Trust: This can be a big issue. Consumers may question the independence of the mediator if it is the trader who has recommended mediation and found the mediator, or it is done through the trader’s trade body. I would say ignore this. No mediator worth their salt would risk their career as a mediator by accepting an appointment where they could not be absolutely impartial. It may be that the mediator does know the trader, or has mediated cases with them before, but this shouldn’t mean you shouldn’t trust them. It can be an advantage to the consumer if the mediator has knowledge of the trader as it could save time and it could mean that the mediator can move to the negotiation phase more quickly. It would be different if the mediator was a decision maker – but they aren’t so just roll with it.
Time: Oh time, if we only could have more of you. It’s an easy excuse though time. Anyone saying they won’t mediate because they don’t have the time is ignoring the fact that if they are not careful they will be spending a lot more time (and money) later on when the case ends up in court. Make time, whether you are a consumer or the trader, make time, mediate and get it sorted.
So we have looked at a couple of issues around mediation and this sets us up for the third blog in this series, which will look in more detail at what actually happens once you and the trader agree to go forward, what really happens in a mediation?
Gregory Hunt is Managing Director of dispute resolution specialists, Hunt ADR Limited.