Mediation is essentially an assisted negotiation. It is a way of solving disputes and differences without going to court or arbitration.
Why should you consider mediation?
There are a great many reasons for choosing to mediate. These include:
- the process has a high degree of success in settling disputes
- it is cost effective, being hugely less expensive than going to court it can bring about a settlement at an early stage of a dispute, saving a lot of time, money and indeed stress.
- the court rules now encourage litigants to attempt mediation and can penalise a party who refuses to do so when making costs orders it is private
- it allows the parties to reach much more tailored outcomes than could be imposed by a judge or arbitrator (for example a settlement might include terms for on-going business) .
How do you start a mediation?
If you have any sort of dispute, whether or not lawyers are involved and whether or not court proceedings are underway, you can propose mediation to your opponent. If the proposal is accepted, the parties then agree the appointment of a neutral person to act as mediator. Usually one party will suggest a few names and the other will agree one of them. As mediators are entirely neutral and independent, the fact that one or other party has suggested a particular person should not disincline the other to use that person.
Once the mediator has been chosen, it is simply a case of agreeing fees, date, venue and a few other practical matters. Unless otherwise agreed, the costs of the mediator are split equally between the parties.
How do you find a mediator?
Most good mediators will have been trained by one of the leading groups such as ADR or CEDR. However, that is just the start and if you are using a solicitor, he or she will normally be able to recommend a number of mediators with experience and a good track record. Absent such a recommendation, there are a number of mediator umbrella groups such as Oxford Mediation who publish details of available mediators on their website.
What else do I need to know about mediation?
Mediation is a voluntary process and no decision will be imposed on the parties – any settlement reached is only binding when the parties agree to it.
It is conducted on a “without prejudice” basis such that, save in very rare circumstances, nothing said at the mediation can be referred to or relied on subsequently by another party.
Full and frank discussions can be had with the mediator who keeps a party’s information entirely confidential unless authorised to reveal any of it to their opponent.
The process is entirely flexible and one of the skills a good mediator will have is an ability to provide the most suitable process for the parties to make progress. In some mediations, the parties never meet. They remain in their private rooms and the mediator shuttles between them. In others, there may be one or more joint meetings, sometimes with different combinations of attendees.
Mediations may last anything from about 3 hours to a whole day, or in large multi-party matters, sometimes more than one day. Mediators’ fees start at around £550 (plus VAT) per party for half a day.