Thompson Smith and Puxon Senior Partner, Mary Anne Fedeyko, and Finance Director, Sharon Auton, are both accredited mediators. They have undergone rigorous training and assessment, passed qualifying exams and undertaken the observations necessary to secure this accreditation.
Sharon, a litigator and Dispute Resolution expert, explains why she decided to undertake the training to become a mediator. “As a Dispute Resolution lawyer I have represented clients in a number of mediations and the results have been extremely successful; I wanted to use the skills that I have developed to help others settle their differences. Mediation is such a great way of sorting out disputes; it means you can find solutions that are outside the influence of the court; you can agree things with the other party that the court can’t order you to do and often, and perhaps most importantly, relationships can be repaired, which again is something that doesn’t tend to happen if a case goes to Court.”
Mary Anne, who, as well as being an accredited mediator, is also a Corporate and Commercial solicitor, adds “If a case comes before the court each party will be a witness and only able to answer the questions that are put to them, rather than being able to say what they want. Typically mediation will involve an open session. The parties meet and each gets to “have their say”. For those involved it can be a venting process – there can be occasions when it gets a little out of hand, but it is my role as the mediator to control the situation and ensure everyone has the opportunity to speak and to get things “off their chest”. I find that when the parties have the opportunity to look each other in the eye they feel much better for it are more likely to sort out their differences, whereas, in a court situation, people’s positions can become very polarised, they become entrenched, and it is very difficult for them to see the other party’s point of view.”
Taking a dispute to court has become very expensive. Sharon adds “I had a case recently where a dispute in a farming family had been ongoing 45 years. Mediation was arranged but, because the dispute was so longstanding, I was apprehensive about the prospects of reaching an agreement. However, an agreement was reached and, in the process, a lot of time, energy and money were saved. Generally to bring a case of its type to court would require an investment of a minimum of £100k – the mediation was a fraction of that cost.
Time is also a very important factor in the process. Even the simplest of disputes can take months to reach a court decision, whereas, if you use mediation, in general, a solution can be reached much more quickly. Mary Anne adds “We also mustn’t underestimate the emotional toll that being part of a court case can take on someone. There is no doubt that it can be a roller coaster – emotionally very trying, and extremely stressful over a prolonged period of time , with no guarantee of the result. There is always a risk with litigation, even if you think that you have a very strong case.”
Being a litigator helps Sharon with her work as a mediator. “Being able to look at the evidence and see the potential for success or failure in a claim gives you an insight into what may happen if the case went to court, but it is crucial not to appear biased. I am trained to listen, to hear what each party has to say, and to think about how their issues might be resolved; to put forward possible solutions that each party can agree to.”
Mary Anne adds “Although I am a solicitor I am not there to give advice on the legal merits of the case. Even if I thought that one participant had a stronger case legally my role as mediator is not to evaluate, but to assist the participants in reaching a settlement. The assessment of the merits of the case is for the parties, and not the mediator.”
Sharon continues “Reality testing of each participants’ case does take place as part of the mediation process though, as a separate session with each party and can be very persuasive in helping them to see weaknesses in their case. Some mediators are quite forceful in reality testing and may say for example “I think you have a 50:50 chance…do you really want to spend £100k taking this to Court?” But this is said in private and equally to both participants. It is important not to show a preference for either party’s case but equally important to make sure each party thinks about the risks they may be taking if they don’t settle.”
Both Sharon and Mary Anne are keen advocates of the total flexibility that a mediation session allows and in particular of the cathartic effect that an open session can have on both parties to the dispute. There are no set rules though; an open session is not compulsory and doesn’t have to take place at the beginning of the mediation. Some mediators start with a closed session; some sessions may just involve the legal advisors for each party. The important thing, as Mary Anne stresses “is that we can run the mediation as we see fit, at the time it is taking place, for the benefit of the parties involved. We may look at the circumstances of the case and think it best not to get the parties together, or the opposite may be true, and the mediation might benefit from a number of open sessions. It may even mean in the case of a neighbour dispute for example, that all or part of the mediation takes place at the site of the dispute to get a clearer picture of what exactly is happening.”
A mediator does not have to have knowledge of the law in the area in which they are going to mediate; they just need to have an open mind and the skills to help the parties to reach a settlement. There are many different types of dispute for which mediation is an extremely useful means of settling an argument. Mary Anne and Sharon do not mediate on Employment or Family disputes but are available to mediate on all other types of dispute.
Before mediation takes place the mediator receives a mediation “bundle”, usually agreed by both parties. They also receive mediation position statements usually from each party, setting out their case. The important thing to remember about mediation is that it is “without prejudice”. What this means is that it is all off the record and nothing that is discussed at mediation or documents disclosed for the purpose of the mediation can be used should the mediation be unsuccessful and the matter end up in court. If an agreement is reached it only becomes binding if it is put in writing and is signed by all parties. Once this has been done the agreement can be enforced by a court.
The important things to remember about using mediation to resolve a dispute are
- It is incredibly cost effective
- It has a high rate of success and there is a significant chance you will reach an agreement
- It will generally only take a day of your time, or less
- It is less stressful than going to court and there is an opportunity to repair relationships
To find out more about the mediation service that Sharon and Mary Anne offer click here. Alternatively contact either to discuss your possible mediation requirements further as follows:
Sharon, by email Sharon.auton@tsplegal.com or 01206 217043
Mary Anne, by email Maryanne.fedyko@tsplegal.com or 01206 217049
