This briefing gives an overview of a typical mediation. It outlines the basics of the mediation process and the advantages and disadvantages for parties to a dispute to consider before agreeing to enter into mediation proceedings.
A mediation is flexible and can be adapted to suit most disputes and accommodate almost all kinds of entity. It is particularly useful where there are more than two parties to a dispute. Below is a standard approach to mediation.
- What is mediation?
1.1 Mediation is a dispute resolution process which involves resolving a dispute without using the courts or arbitration.
1.2 The parties involved in the mediation meet together with a neutral and impartial third party (the mediator) to negotiate and to attempt to settle their differences with the mediator’s assistance.
1.3 The aim of mediation is to achieve a negotiated settlement between the parties. It is a form of assisted negotiation in which the mediator helps the parties negotiate with each other with a view to resolving the dispute for themselves.
1.4 The key features of mediation are as follows:
1.4.1 Non-binding – mediation does not bind the parties - until a settlement is reached. A confidentiality agreement is put in place to prevent the parties in any subsequent litigation from relying on evidence of what was said in the mediation. If a settlement is reached then the settlement agreement itself will bind the parties.
1.4.2 Private – the mediation process is private and confidential. It takes place behind closed doors. The terms of any settlement and even the fact that a mediation has taken place are not the subject of public record and can be kept confidential if the parties want
1.4.3 Neutral third party – the mediator does not sit in judgment. The mediator is a trained independent third party whose role is to facilitate a settlement and assist in the negotiations. The mediator will explore in confidence with each side the strengths and weaknesses of their case.
1.5 Mediation can be used as a forum for testing the strengths and weaknesses of each side’s case. It is therefore often possible to move parties away from their pleaded position because they are led by the mediator to a much clearer view of the weaknesses in their case. Nevertheless, it has to be remembered that mediation will only work if both parties are prepared to compromise. A party should not go into mediation believing that it will be able to do a deal for the full amount of its claim.
- Advantages and Disadvantages of Mediation
2.1.1 Mediation gives the parties control of their own dispute and, importantly, control over the outcome. Any resolution is reached by agreement and not imposed on the parties.
2.1.2 Mediation offers greater flexibility in terms of procedure and outcome, both of which are subject only to the parties agreement.
2.1.3 Mediation has been shown to be effective in settling disputes. Over 90% of mediations result in settlement. Further research has suggested that mediated cases have a much higher settlement rate than cases that are not mediated at all, even if settlement is not reached at the mediation itself.
2.1.4 Mediation has the potential to resolve disputes more quickly since it involves far less procedural steps than litigation.
2.1.5 Mediation is a shorter process than litigation. If successful, it saves considerable management time (and cost).
2.1.6 Mediated settlements occur several months earlier than settlements in non-mediated cases.
2.1.7 To the extent that mediation is successful it saves legal costs as well as time.
2.1.8 It is usual for the mediation agreement to provide that the mediation is private and confidential and that if settlement is not reached nothing that is said in the mediation can be relied upon in subsequent litigation.
2.2.1 The mediation process depends for its success on the good faith of the parties and so the process does not guarantee an end to the dispute.
2.2.2 Mediation is voluntary so that any party can withdraw at any time for any reason.
2.2.3 Since mediation involves negotiating a resolution of the dispute it is likely to require compromise by both parties.
- Preparing for your mediation
3.1 At the mediation the parties will have the opportunity to give a short opening statement. This is an opportunity for you to give your perspective on the dispute and put forward the merits of your case.
3.2 A summary of your case will need to have been prepared before hand for the mediator including copies of documents upon which you intend to rely.
3.3 You should decide on a strategy to adopt in the mediation. i.e. what are the points you cannot move on and on which points are you willing to give ground. You must also anticipate the other party’s position and be prepared to respond to the points they raise.
3.4 It is vital that the mediation is attended by one or more people on both sides who have authority to settle the dispute on the day, otherwise it will not be possible to enter into a settlement agreement on the day of the mediation.
- What will happen at your mediation?
4.1 The mediation will begin with a joint session chaired by the mediator involving all parties. At this stage the mediator will explain the process of mediation and opening statements will be heard.
4.2 After the joint session the parties retire to separate rooms. All parties are then visited by the mediator separately for private discussions. The mediator will move between rooms, exploring the arguments on each side and asking the parties to consider the strengths and weaknesses of their positions with a view to moving the negotiations forward.
4.3 It will be up to the parties to decide if a common position has been reached. If an agreement acceptable to the parties is reached, this should be recorded in a binding written agreement. This binding agreement can be expressed to be confidential.
4.4 The written agreement can then be enforced in the court if one party does not honour it, although this is rarely required as the written agreement is the product of agreement between the parties.