HomeFWJ takeawayTakeawayDebt recoveryLetter before actionDebts and Coronavirus: how best to pursue payment of outstanding debts

As the COVID-19 situation continues to unfold and the damaging economic impact is being felt everywhere, businesses face the difficult question of how to go about recovering debts in these unusual circumstances.

It is business as usual

Despite the disruptions, the team at Francis Wilks & Jones is well-equipped to continue providing a full service to its clients, including debt recovery support.

Equally, the Courts remain largely accessible with an increased number of matters being heard through telephone or audio visual platforms such as Skype. Importantly, clients can still initiate legal proceedings as claims are still being accepted online. We can assist you and your business with all of this.

But is there a better way?

We are, however, faced with the reality of a rapidly changing situation and the uncertainty that brings.

We are also faced with the reality that, as a consequences of these disruptions, there will be significant delays to the allocation of court hearing dates.

Most importantly, we understand what such delays will mean to your business’s cash flow, the lifeblood of any business.

For those reasons, Francis Wilks & Jones is taking a proactive and pragmatic approach with a view of getting you paid faster, and at less cost to you.

Mediation is one such approach that offers the prospect of such a solution.

What is mediation?

Mediation is a form of alternative dispute resolution.

The purpose of mediation is to give the parties to a dispute the opportunity to negotiate an agreement that would spare both parties the further costs of trial.

Mediation is always conducted on a ‘without prejudice’ basis, meaning that anything said in the mediation by either party is not able to be used in court, in the event that no settlement is reached. The reason for that is to encourage open and frank discussion between the parties and maximise the possibility of a resolution being reached.

But aren’t we meant to stay inside?

Absolutely. However, we are completely equipped to conduct mediations remotely and have experience in doing so.

Francis Wilks & Jones has a variety of technologies at its disposal such as Microsoft Teams, Zoom or Skype. Importantly, we will work with you to make it as seamless as possible.

How is an online mediation different to a normal mediation?

Mediations conducted remotely are not much different to face-to-face mediations.

The independent mediator, who both parties have agreed to appoint, is responsible for ensuring the mediation runs smoothly.

The mediator will have control of the audio visual platform and will conduct the mediation with both joint and breakout sessions.

A joint session will involve all parties being present over video, just as if everyone was sitting at the negotiating table. It is here that the mediator will outline the ground rules for the mediation, and each party will have the opportunity to present its position.

A breakout session, which takes place after the initial joint session, will involve both sides separating into their own virtual ‘breakout rooms’.

Neither party will be able to access the other party’s breakout room. This preserves confidentiality and encourages honest debate. It also means that you can consult with your legal adviser, expert and / or other specialist without fear of being overheard.

The bulk of negotiating will occur in these breakout rooms with the mediator moving “virtually” between them.

Depending on how the mediation progresses, there may be a number of joint sessions followed by breakout sessions.

The other party is unreasonable, isn’t it just a waste of time?

No decent lawyer will guarantee that every mediation will result in a settlement. In many cases, it does and in many cases, it does not. However, it is certainly worth considering as a cost-effective way of resolving a dispute – particularly in circumstances where there is current ambiguity regarding the progress of current and future court hearings.

Indeed, irrespective of outcome, the advantage of conducting such mediations is both you and your lawyers having the opportunity to ‘feel out’ the other party’s attitude, and essentially ‘test’ their case, which is critical to successful preparation for trial.

In the event that an amicable resolution is achieved then the parties can draft, circulate, consider, amend and execute any settlement agreement remotely. If required, the final version can be lodged at the court to either stay or determine any current proceedings.

That aside, used appropriately, remote mediation saves your business time and money, is faster to arrange and much more flexible. Equally, the fact it occurs remotely can reduce instances of conflict where one or both parties are particularly hostile.

Finally, and perhaps most importantly, it provides you and your business with a greater degree of control over the outcome of the dispute. And in times where nothing is certain, mediation makes for an attractive option to consider.

Francis Wilks & Jones is always here to assist you. If you have any questions about whether remote mediation will work for your business, contact Andrew Bowden-BrownMike Lockton or Tom Serafin.

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