Mediation and Mediators
We are receiving confusing calls in respect to mediation and mediator appointments.
Mediation is a process which has been adopted by the Civil Court in the United Kingdom and is an alternative to a trial.
The courts actively promote Mediation and unreasonable refusal to engage in the process (if offered) will have cost consequences if the action sees trial.
In short, Mediation is a “round the table” meeting with an independent person present (so as to keep order in the process), that person/Mediator controls the events and permits both sides to air their grievance. He will also separate the parties so that they can have time to digest the opinions and views of the opposing parties, to facilitate a compromise between the parties. He is a facilitator to the parties and must at all times hold in confidence what you say to him.
This all explained, when should you go to Mediation?
Mediation can take place before litigation or whilst in litigation, the earlier the better so as to limit costs.
Mediation however cannot take place until such time as the parties are fully aware of the other side’s position in the dispute.
For instance, Mediation is unlikely to achieve a success until the Claimant has set out his case properly and the Defendant has set out his reasons for disputing the Claimants claim.
At this point you have a reasonable chance of understanding each other’s position. I am not saying that you agree, but you will know what issues you will face at trial. Once these pleadings have been exchanged you will need to see the documents which purport to back up the Defendant’s and the Claimant’s case. This process affords each to have sight of the substance behind the others position.
Of course with all this information to hand you have an opportunity to dissuade your opponent from his defence or claim by way of a Position Statement (which is exchanged by the parties before the Mediation). These Position Statements narrow the dispute to the core elements which will be tried and even if a court is required to adjudicate in the matter.
With all this in hand and each party knowing what the others case is, the Mediation can take place.
The Mediator
The appointment of a Mediator is quite a simple thing to undertake – there are many legal firms who provide the service as well as non legal associations.
The Mediator is appointed by both parties (not one) and they ought to be knowledgeable about the subject and be independent.
There are certain timeshare associations and timeshare professional bodies who are linked to the industry and who claim they have Mediators who can help consumers. They promote a facility to appoint Mediators and arrange your Mediation. Avoid these at all costs!
The Timeshare Consumer Association can assist (to a point) in the appointment of a Mediator. We act for the consumer, others do also and others act for the timeshare industry. All of us have our own biases, our own views, beliefs and ideas. Mediation is your event, it’s your choice ultimately and that of your opponent. We can only point you in the right direction, from our own experience in these matters. It’s not for us to arrange your Mediator, it’s not for the resorts professional bodies to arrange it and certainly not associations who are linked to developers and resorts. It’s for you and the other party to agree a Mediator.
Never permit others to intervene in this process and at all times ensure that you obtain a CV from any proposed Mediator, further to this, obtain from them a declaration as to their relationship with your opponent and any conflicts of interest which they might have with either you or your opponent.
With all this information you can make an informed decision as the mediator is “key” to bringing your dispute to an end, or at least giving it a fair shot.
Costs
As with all things “you get what you pay for”, if it is your intention to just have a stab at it (so as to comply with the courts directive) you will be reluctant to be contracted to a expensive Mediator, however you might want a good Mediator who will exact pressure on the parties to settle. No doubt the latter will be more expensive.
How do you know whether Mediation is good or bad?
This is quite easy. Ask them for details of their success rate in %, how many Mediations they have participated in and how many have been settled (at the Mediation or within 14 days after the mediation). If they have a success rate of 100% they are either very lucky or very good. If they have conducted 50 Mediations and have maintained a 100% success rate on settling they are excellent. I am sure that it will be very hard to find such a person, especially at a reasonable cost but at least you can get the information, shop around a bit – 80% of 50 cases is better than 100% of 5, more experience is always better.
Some Mediators are not associated with the legal profession but are very good and approach it from unorthodox angles. As stated Mediation is not a legal platform, it is a without prejudice settlement meeting, and is designed to exit a legal (or potentially legal) action without the need of a Judge.
Do I have a good chance of winning?
The short answer is no. At mediation there are no winners or losers. A good final agreement is when both parties feel that they have lost something. But what they have won is finality to a problem they had. If a deal is done at Mediation then your dispute is at an end, with no more visits to expensive lawyers and barristers, no more worries and the freedom to skip off into life’s better avenues.
For more information regarding this article or assistance in any other timeshare related issues please contact the TCA on 01908 881058 or email: info@TimeshareConsumerAssociation.org.uk