Abraham Lincoln once said: “Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often the real loser – in fees, and expenses, and waste of time.”
But how do you get the parties to a conflict to compromise? The answer lies in Alternative Dispute Resolution (ADR) forms, such as mediation.
Mediation is nothing new. However, it didn’t become accepted as part of the legal process until the ‘90s. Since then, mediation clauses appear in commercial maritime contracts, like charterparties, insurance policies, LOF 2000 and in the BIMCO Standard Ship Repair Contract.
So, let’s become better acquainted with this ADR methodology .
𝗪𝗵𝗮𝘁’𝘀 𝗺𝗮𝗿𝗶𝗻𝗲 𝗺𝗲𝗱𝗶𝗮𝘁𝗶𝗼𝗻?
Marine mediation is an unbiased, voluntary and confidential process to resolve disputes. The parties select a neutral third person – the mediator – who will work with them to reach a settlement to their mutual satisfaction. It’s a solution to keep marine and boating disputes out of court.
𝗪𝗵𝗼 𝗰𝗮𝗻 𝗯𝗲 𝗮 𝗺𝗲𝗱𝗶𝗮𝘁𝗼𝗿?
Anyone can act as a mediator as long as the parties agree. It’s common to rely on professionals such as:
· Legal experts
· Former judges
· Senior mariners/ship captains
· Maritime experts (engineers/surveyors)
𝗛𝗼𝘄 𝘁𝗼 𝗰𝗼𝗻𝗱𝘂𝗰𝘁 𝗺𝗲𝗱𝗶𝗮𝘁𝗶𝗼𝗻 𝗶𝗻 𝗺𝗮𝗿𝗶𝘁𝗶𝗺𝗲 𝗱𝗶𝘀𝗽𝘂𝘁𝗲 𝗿𝗲𝘀𝗼𝗹𝘂𝘁𝗶𝗼𝗻?
There isn’t a fixed format. Maritime mediations involve a mixture of ‘break-out’ sessions (the parties retire to separate rooms) and joint discussions.
By meeting each party individually, the mediator gains a better understanding of the dispute and can look into available settlement options.
After the preliminary meetings, all parties convene. The mediator helps disputants come to a consensus on their own. A good mediator will point out the parties’ common interests, and emphasise the dire consequences of an ongoing conflict.
If mediation does the trick, the parties will resolve the matter amicably and sign a settlement agreement.
𝗪𝗵𝗲𝗻 𝗶𝘀 𝗺𝗲𝗱𝗶𝗮𝘁𝗶𝗼𝗻 𝗮𝗽𝗽𝗿𝗼𝗽𝗿𝗶𝗮𝘁𝗲?
The parties wish to preserve their business relationship.
Lawyers advise that the balance of responsibilities in the dispute is unclear.
The cash values don’t justify substantial legal costs.
The Court may impose cost penalties if the parties can’t show they considered mediation.
The parties wish to settle the dispute ASAP, without publicity and in private.
The parties are directly involved in negotiating their own agreement.
𝗪𝗵𝗮𝘁 𝗵𝗮𝗽𝗽𝗲𝗻𝘀 𝘄𝗵𝗲𝗻 𝗺𝗲𝗱𝗶𝗮𝘁𝗶𝗼𝗻 𝗶𝘀𝗻’𝘁 𝘀𝘂𝗰𝗰𝗲𝘀𝘀𝗳𝘂𝗹?
The parties may refer to arbitration or proceed to litigation.
As Jack Sparrow so wisely said : “Why fight when you can negotiate?” Contact our expert team for alternative, hassle-free ways to solve your disputes.
P.S. Read more about the 10 benefits of mediation in the attached infographic.