Mediation is a cost-effective means by which parties seek a solution to their dispute.  Increasingly the judges regard court as place of last resort expecting disputing parties to attempt alternative means to resolve their dispute.

Mediation is one of the most popular forms of Alternative Dispute Resolution (ADR) whereby an independent and impartial Mediator assists the parties to facilitate a settlement. The Mediator is not a Judge nor an Arbitrator and will not impose their opinion about the merits of either party’s case. The mediator’s role is to hear in confidence both sides of the issue and encourage the parties to find a means to resolution.

The advantages of Mediation

  • It is cost effective.
  • It is quick.
  • It can happen any time in the dispute process shortly after the issue arises, or very near to a court trial.
  • It is confidential.
  • The parties are in control as to process and outcome.
  • Provides flexibility as to potential solutions.
  • It’s a means of preserving long term relationships especially in the commercial, business and international arena.

The Mediation Process

Each mediator has their own style how to conduct the mediation process. The nature of the issue and the character of the participating parties can influence a mediator’s approach.

Prior to the mediation the mediator will probably have an initial confidential conversation with each party or their representatives so as to break the ice.

At the mediation the Mediator may meet the parties together but with the facility for private sessions with the individual party. Such private sessions are confidential unless the party gives the mediator permission to reflect certain points to the other party.

The Mediator may encourage reality testing whereby the parties are encouraged to discuss the merits of their respective case, the costs and the implications of going to trial.

The Mediation process attempts to build empathy and understanding between the disputing parties and look at different ways of resolving the dispute.

If the parties do find a solution then this will be recorded in a binding Agreement between the parties and, if necessary, enforceable through the courts.

Material discussed or disclosed at a mediation is confidential and the parties cannot use this information as court evidence in any trial.

Duration of a Mediation?

Many mediations last aday but much depends on the nature and complexity of the dispute. Some mediations are conducted over a matter of days, or alternatively a matter of hours.

Sometimes a Mediation session does not lead to resolution but leaves matters open for further negotiation between the parties or a subsequent use of mediation. 

When is the right time to Mediate?

There is no right time to Mediate. The process can occur very early on in the dispute, or even close to any court trial, tribunal hearing or arbitration. There are advantages for mediation occurring at an early stage before the litigation process escalates as well as costs.

How much does Mediation cost?

The Mediator’s fees are paid equally by the parties. Such fees are determined by various factors such as dispute complexity, value, time for preparation and duration of the mediation.   

Where does the Mediation occur?

Usually the parties determine the location of the mediation.  Assuming there are two parties the venue needs at least three meeting rooms. One for each party and the mediator’s room for joint meetings with the parties. 

The length of a mediation varies with some being less than a day whilst others longer can take all day or staggered over several days. Also, ahead of the mediation day the mediator will spend some time speaking separately and in confidence with each of the parties and their advisors to build a working rapport as well as gain a greater understanding of the issues from their respective perspectives. This will help save time and the mediation can focus on exploring possible resolutions.

Can Mediation occur online or virtually

Absolutely. The mediation process can be adapted to occur all or part online. The parties or their advisors would be responsible for organizing the practicalities such as accommodation, food and beverages and IT support such as Zoom or Teams if a virtual or hybrid mediation.

Is Mediation a sign of weakness?

Absolutely not. The court rules and numerous court judgements have determined that you need a very good reason to refuse using Mediation or another form of Alternative Dispute Resolution (ADR). The court can impose severe cost penalties if a party forces an issue to court when the parties could have resolved matters through ADR. 

Many commercial contracts have in their terms Alternative Dispute Resolution or Mediation Clauses stipulating their use with court as the last resort. Whereas a court will make their decision in favour of one party, mediation allows the parties to explore alternative options and compromises particularly useful where parties wish to maintain a long-term relationship in the commercial arena.

Do parties need a lawyer to represent them?

Parties are at liberty to attend a Mediation with their professional advisors.

Is there any type of case which Mediation is not suitable?

Probably most disputes could benefit from the consideration of Mediation.

Is mediation just for disputes?

The mediation process has many qualities that could be used in a variety of circumstances where no disputes exists. This can include merger/ takeover discussions, joint venture negotiations and the administration of a company.

Does Mediation involve much paperwork?

The parties decide what documents they wish the Mediator to see. Each party prepares their own Mediation summary or agree a joint summary. The summary describes the issues, their respective standpoint and, possibly, suggested solutions. Providing the Mediator with ample detail helps them understand the issues and their context.

Is the Mediator there to give an opinion?

The Mediator is independent and impartial- they are not there to judge but facilitate the parties to finding their own resolution. The Mediator will challenge the parties through open questioning, and encourage them to consider the other party’s perspective.

Does the Mediator need to be an expert in the area?

Not necessarily. Many Mediators mediate on a range of subjects not necessarily their own expertise; they are not there to give technical advice or opinion. The Mediator is providing mediation experience and skills to help facilitate the parties reaching their own agreement. Sometimes the parties may find it more appropriate to instruct a Mediator who has expertise on the issues in dispute.

How do organise a Mediation?

Assuming the parties agree to mediate they need to agree the appropriate duration of the mediation and whom to instruct. Usually, the parties will identify several potential mediators and then decide upon whom to instruct.Some mediations require more than one mediator.

Q The co-ordination of the mediation.

The mediation fees must be paid in advance by the parties.

Prior to or at the start of the mediation meeting the parties must sign the mediator’s terms of engagement.

The parties or their advisors would be responsible for organizing the practicalities such as accommodation, food and beverages and IT support such as Zoom or Teams if a virtual or hybrid mediation.

Can a party withdraw from the Mediation?

Mediation is a voluntary process so for whatever reason a party may withdraw from the Mediation process.  However, there could be fee penalties with the Mediator if you withdraw from a Mediation at very short notice close to the Mediation date or on the day of the Mediation.

If during Mediation the parties reach dead lock then either party may stop the Mediation. The Mediator will endeavour to encourage the parties to mediate or encourage an ongoing dialogue should the mediation end without resolution. Subsequent Mediation remains an option.

Where proceedings are active the court may ask the parties the reasons for the mediation not occurring or not reaching a conclusion. There could be costs penalties against an uncooperative party.