Mediation is now on everyone's lips and is increasingly becoming an effective way to settle disputes that may arise between two or more parties.
If a few years ago, the proposal to hold a mediation could be considered as an admission of weakness on the part of a person who feared for a court decision, mentalities have now changed significantly.
Mediation is now encouraged by many legal professionals. It can even be imposed by the court and it is sometimes institutionalised in certain companies or sectors.
Therefore, it is nowadays important to look for the most effective way to deal with a case at the outset.
Indeed, mediation is not always the best solution to all problems. Sometimes court proceedings are still the most appropriate way to resolve a dispute.
We have developed a number of tools to choose the best course of action and the best way to resolve your dispute.
How to choose?
Below are some key questions to help you to make the right choice.
1. How much financial means am I prepared to spend on this dispute?
This is the first important question to raise. We always remind you, before starting proceedings, that the judicial phase is sometimes time-consuming and expensive.
You should allow at least one full year for a first judgement, bearing in mind that appeal proceedings are in principle always possible. You can expect at least one to two more years for the appeal proceeding.
Mediation, on the other hand, can lead to a compromise in one or more meetings.
In both procedures the outcome is uncertain, but the time and financial means to spend on mediation is in general substantially lower.
This aspect must be seriously considered before making a choice and we always give you all the relevant information to help you to make a good decision.
2. Will I have to deal with the counterparty in the future?
There are situations in which, even if you argue with someone, you know that you will have to deal with him/her in the future. This is particularly the case:
- For people within the same family;
- Neighbours;
- Business partners in a closed market;
- Different parties in the same economic sector.
If you are sure not to have to deal with the adverse party anymore, there may be less obstacles to consider legal proceedings.
If, on the other hand, you find yourself in a situation where you will have to continue to live or work together with the "adversary", mediation can not only be helpful to settle the conflict but also to de-mine potential future worries.
We carefully review this phase with you to help you to look towards the future.
3. What are the chances that I will get 100% of what I claim?
We always carry out a risk analysis of your situation and positions before starting any proceeding.
This will enable you to know the strengths and weaknesses of your situation.
However, you should also bear in mind that, even if you are certain about the legitimacy of your claim, there is always a significant element of uncertainty in the outcome of legal proceedings. You will never be certain of obtaining 100% of what you claim.
If, following our analysis, you are convinced that your position will be upheld in its entirety, legal proceedings may be the way to go.
If, on the other hand, the existence of the hazard and its risks take precedence in your reflections, the initiation of mediation will certainly be an option worth considering.
4. What is your availability to devote to this litigation in the coming months/future years?
As already mentioned, legal proceedings involve months or even years of work.
It is important to be aware from the outset, before starting such proceedings, that it will take a lot of energy and time to ensure that your case is well handled and hopefully successful.
This is a key issue, which one does not always realise at the heat of the conflict.
If you decide from the outset to make the necessary time available throughout the court proceedings, then this will allow for optimal management of the court decision thus taken.
If, on the other hand, you are concerned that you will not be able to keep up with the dispute, and that for example your staff will be dedicated to other activities, an attempt to resolve the dispute more quickly, through mediation, could be an interesting alternative.
We always review with you each phase to come to enable you to anticipate the process.
5. How complex is my dispute and who are the parties involved?
This is not a trivial issue: the courts in our country deal with a wide range of problems and the proceedings are public.
Courts are divided into specialties, judges (even specialised judges) cannot handle all cases.
Highly specialised and technical issues often arise in the context of a dispute and there is therefore a legitimate concern that the judge dealing with the dispute may not be an expert in the subject matter.
If we assume that it may be more beneficial to consider the issues involved with the support of a truly specialist, mediation will be a valuable alternative, as the parties are free to choose the person who will mediate. Alternatively, arbitration could be considered as well.
If the issues to be addressed are more "traditional", the option to go to court should not be ruled out for this reason.
6. What are the risks if my dispute becomes public?
Finally, there are many sensitive disputes which those involved prefer not to be covered by the media. As the hearings are open for public, it is common for journalists to attend hearings.
Mediation, on the other hand, is completely confidential and the secrecy of the discussions held is therefore guaranteed, as is arbitration.
7. Conclusion
There is no single criteria that should be used to select the most appropriate way for resolving a particular dispute.
We always carry out an overall analysis of the situation at hand, asking several pertinent questions.
This will never be a wasted analysis but will be a valuable reflection that will save everyone time and money.
Our team is specialised in dispute resolution (judicial and arbitration) and at the same time have experience in mediation. Some of our lawyers are mediators and are even certified mediators.
