Part 2 | Why try out-of-court mediation?

The parties to a dispute are often unwavering and certain of their side of a matter. But there is a difference between being right and becoming right. With mediation, the parties can find a solution faster, more affordably and with reduced risk. This is the second article in a series of three where you get an insight into what mediation actually is.

Faster and cheaper: An appealing aspect of out-of-court mediation is the possibility of finding a solution earlier in the process. In business, time = money, and the parties therefore have a need to return to everyday life and value creation as soon as possible. If a settlement is reached in mediation, the dispute is resolved before it even reaches the court. In a court case, on the other hand, the parties have to prepare themselves for two long and expensive rounds in the legal system, often over several years, and with an uncertain outcome. On the other hand, the dispute can last for months and often years, and the costs are often high.

Specialised expertise: Like arbitration, out-of-court mediation offers the advantage that the independent third party, in this case the mediator, can have specialised expertise. The judges in the ordinary courts are generalists, which means that they have prison judgments one day and children’s custody cases the next. If a commercial legal case comes to the table, the litigants alone have no guarantee that the judge has previous knowledge of the subject area, which unfortunately can lead to longer processes of lower quality, and judgments with unpredictable outcomes.

One of the advantages of out-of-court mediation is that the parties themselves can choose who will mediate. A mediator who is passionate about the subject is a good starting point for finding a solution that both parties can live with.

Hilde Lund, partner at SANDS

Tailor-made solutions: A judgment must be enforceable, be based on evidence and legal sources, and must relate to the parties’ claims. This entails extensive restrictions on what the judgment can be about. Through mediation, the parties can discuss a greater variety of outcomes, reduce risk by accepting intermediate solutions and, in some cases, lay the foundation for gains that would not be available to the parties in court.

Maintains good relations: The mediation facilitates a constructive dialogue and takes into account future relations and cooperation. This can reduce the level of conflict and preserve or restore good relations between the parties.

Ensures confidentiality: Out-of-court mediation takes place behind closed doors and is not registered on the court’s scheduling list. The parties can be sure that personal and business information will not be made public.

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