Quite rightly most people think of a mediation as being part of a legal process and it is in that mechanism by which a legally binding solution can be achieved. However, it does not have to necessarily be part of a wider legal process. As a mediator whilst I am often appointed by instructing solicitors, I do frequently get instructed directly by the parties who have not even seen solicitors. Many would find this surprising but very often businesses will have a dispute between themselves and a customer or supplier where they want to maintain a good working relationship. Whilst instructing solicitors is a way to go many find that approaching a problem in this way can make the going relationship difficult.

I would not necessarily say that it is the fault of the solicitors, but it can be a result of the process in that the matters which might be in dispute, which may be separate to other business activities, can mean the nature of on-going dialogue has to be in part controlled by the legal process. The other issue can simply be a matter of time and cost.

Very often time and preserving on-going relationships are potentially the biggest cost danger. In these circumstances, the parties may look at a mediator more as a facilitator and intermediary to allow the parties to discuss and resolve the issue without embarking on the more traditional legal route. It is purely then a commercial consideration on how to achieve the way forward as quickly and as expeditiously as possible so that good business can continue unfettered.

So addressing the answer to the question in the title mediation should commence as soon as there is any dispute and it has potential stages:

• No outside parties’ involvement just the parties try and resolve the dispute – essentially agree the problem and agree a solution.
• The parties bring in a third party to act as an impartial facilitator – a mediator potentially
• The parties instruct their own independent agents to act for them in the dispute – usually lawyers which might then mean that a mediation is then suggested as a mechanism.

It should never be forgotten in any dispute the objective is to reach an agreement/settlement and unfortunately at times it seems in the process this fact gets forgotten!

Jonathan Russell

Hexagon Mediation