Mediation

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What is mediation?

Quite simply it is a way of resolving disputes without the need to go to court. If both parties in a dispute agree to mediation then a trained and accredited mediator, who is always an impartial third party, guides the parties to a settlement on which they both agree. The mediator does not impose a decision or attempt to judge the merits of the case.

Why is mediation not used in every case?

The difficult bit about mediation is actually getting both parties to agree that mediation is a good idea in the first place. Many disputes become very personal and the common law legal system is geared to a combative approach - finding fault, picking holes, showing blame or error. People are not inclined, by the very nature of the process, to settle - they want their day in court. They want to show the other party that they were in the wrong.

How does mediation overcome this?

Mediation looks at the common ground, the positive aspects and finds the best resolution for both parties. It identifies the risk both parties have in litigation and encourages them to assess the strengths and weaknesses of their case. Mediation can be (and is) used before or during the litigation process.

How does it work?

Mediation requires the consent of all the parties concerned but if one or more have not indicated willingness it is nevertheless possible to approach ADR Chambers UK to help to negotiate that initial agreement. The choice of mediator is important: it is generally best left to ADR Chambers UK to recommend a trained and accredited mediator with relevant experience and if required knowledge of the subject.

At an agreed time and venue the mediator listens, allows the parties to express their feelings and explores underlying issues, challenging and encouraging where necessary. The mediator spends time with each party both in joint session and in private meetings (sometimes called 'caucus') helping each party to focus on their interests and the interests of the other parties rather than what they may perceive as their legal “rights”.

In commercial or contractual disputes the mediator may explore the early part of the relationship, drawing out what it was that caused them to work together initially and what caused the breakdown in trust or confidence between the parties. The mediator will help the parties to examine areas of possible agreement as well as disagreement. The mediator will also help each party to examine their own resolve, testing out their belief in the true strength of their own case and their resolve to fight rather than settle.

Mediation is private, confidential and without prejudice

Some of this process can be difficult if not painful for some parties: for this reason the mediator will never test parties or try to expose weaknesses in a case in joint session, only ever in private.

All the discussions are completely confidential - the mediator will not repeat or imply to another party anything that one party has said unless or until the mediator has been given express permission to do so. This confidentiality allows the parties to trust the mediator so they can discuss openly all aspects of their case. Eventually, by spending time "shuttling" between the parties, the mediator can help the parties to understand their own and each other's positions in a way quite different to that of the traditional adversarial case and in over 80% of civil cases reach an agreement on the day.

If no agreement is reached the parties are not in any way bound by what has been discussed. The discussions are expressly without prejudice and may not be referred to at court. This confidentiality is enshrined in a written mediation accord which the parties are required to sign before the mediation.

If the parties settle the matter then an agreement will be drawn up. The agreement becomes binding only once it has been drawn up and signed by the parties: if the agreement is not honoured it may be enforced contractually or preferably by a further mediation. Most agreements are honoured though, precisely because the parties have worked hard to achieve a settlement and upon terms that were always within their control, unlike an imposed court decision.

Why mediate?

There are plenty of very good reasons, such as

• The outcome of mediation is always within the control of the parties - with the help of the mediator they decide for themselves upon a settlement they can live with.
• Parties in mediation avoid the uncertainty and dissatisfaction often experienced in court or at arbitration where they have little choice but to accept the judgment which may disappoint.
• Mediation resolves disputes fast, usually within a day, and can be arranged in days or weeks.
• Mediation is significantly less expensive than litigation - because months or years of litigation are avoided, as are the consequent fees of lawyers and experts. Parties may of course (and generally do) have legal or other advisors present during the mediation if they wish.
• Mediation is voluntary; any party may withdraw at any time.
• The Mediation can take place at any time - it is not limited to ordinary working days or hours. If it suits the parties to negotiate over a weekend, then that is when it happens.