Litigation or Mediation - Choice Can Cost; Mark Elder, Partner and Head of Commercial Litigation at the Birmingham Offices of Law Firm Irwin Mitchell LLP, Looks at the Merits of Litigation and Mediation in the Dispute Resolution Process. He Is Also an Accredited Mediator with ADR Group

Article excerpt

Byline: Mark Elder

Tough economic conditions have led to tougher attitudes in the business community. Companies are demanding not only added-value services but also straightforward no-nonsense business dealings with their suppliers and customers. Dealings with their legal service providers are being treated no differently.

Whilst the conditions have, ironically, seen an increase in commercial disputes, fuelled no doubt by companies wishing to recover overdue monies and the like, in more affluent times companies would have not given a second thought to progressing matters by way of litigation. However, in these challenging economic conditions where a shortage of cash may engender a reluctance to litigate, companies are looking for "litigation guidance" and/or a more cost efficient alternative to being locked into a lengthy litigation process.

Whilst litigation has long been regarded as expensive, even after Lord Woolf initiated reforms in 1998 with the intention of enhancing access to justice by reducing the time and cost of litigation, having conducted client service reviews we have listened to our clients' feedback with regard to the litigation process. Essentially, our clients have indicated the need to be in control of the actual process, cost and direction. As a consequence, we therefore provide clients with an early risk assessment of the merits ensuring that the legal, quantum and evidential issues are addressed from the outset. This risk assessment is then closely monitored via bespoke software and should the working parameters of the assessment change in any way it is updated and the client informed as to the implications. Off the back of the risk assessment, should the client then decide to commit to litigation, my team offers a variety of funding options tailored to their specific situation. From compartmentalising/ capping legal costs for defined aspects of a dispute to offering a Conditional Fee Arrangement ("CFA"), After the Event insurance ("ATE") and third party funding options, Irwin Mitchell LLP offers considerable expertise in this area as the UK's fifth largest litigation practice.

That said, an ever popular alternative to litigation is that of mediation (sometimes referred to as ADR or Alternative Dispute Resolution). The increasing popularity of mediation is due to the fact that it is now recognised as one of the fastest and most cost effective routes to achieving settlement of a dispute.

Mediation, in a broad sense, is an effective way of resolving a dispute, involving an independent third party, without the need to go to Court. Mediators have no advisory role, instead they work towards helping the parties develop a shared understanding of the dispute in question. They use appropriate techniques and/or skills to open and/or improve dialogue between the parties, aiming to help facilitate a resolution if possible. In terms of how a typical mediation is conducted, the parties and their advisers meet at an agreed location. …