What is mediation?
Mediation is a way of resolving disputes by agreeing a settlement instead of litigation, meaning starting court proceedings to obtain a judgment.
The parties appoint a mediator. A mediator is an impartial person whose role is to facilitate negotiations and settlement between the parties. Unlike litigation where a judge is in control, in mediation the parties are in control.
How does it work in practice?
After deciding on a mediator and entering into a mediation agreement, the parties agree a date and venue. One week before the day of the mediation, the parties will exchange position statements, key documents and a schedule setting out existing and estimated future costs. These are also provided to the mediator.
On the day, both parties and their advisers will meet in one large room together with the mediator in a joint session. After the mediator has explained the mediation process, each party makes an opening statement, following which the parties go to separate rooms. The mediator then conducts what is known as shuttle diplomacy by meeting in private with each party to convey information, explain the other party’s position, challenge any weaknesses and present any settlement offers. If successful, the day concludes with the signature of a settlement agreement.
Who should attend a mediation from my organisation?
It should be attended by a senior person who has decision-making authority to negotiate and settle the dispute. The most appropriate person to do this depends on the scale and complexity of the dispute and how important it is to your organisation. The attendee is usually accompanied on the day by a lawyer. If there is an expert witness, that person should either attend or be contactable by phone on the day.
When does a mediation take place and how long does it last?
It can take place at any stage of a dispute from before court proceedings are started until after the appeal of a court judgment. It can take place at the same time as litigation and can be arranged at short notice. The mediation itself usually lasts for one day except in the most complicated of cases.
Is it compulsory?
No, mediation is a voluntary process and there is no requirement to go through it. The parties can also terminate a mediation at any stage.
Why should I mediate?
There are excellent reasons to mediate.
It is generally considered to have a high rate of success. Disputes are very often settled on the day or shortly afterwards.
Mediation is flexible and allows the parties to agree anything they want, such as the negotiation of a new long-term contract which can be part of the settlement agreement. A court does not have the power to do this. This flexibility could save a valuable business relationship which might otherwise be lost.
It is completely confidential and nothing can be disclosed outside of the mediation including in court proceedings. This allows everyone to talk freely and means that sensitive information remains private.
Mediation is much cheaper and faster than going to court. Even if no settlement is achieved, it can narrow the issues in dispute which in turn can speed up the court process, saving time and money.
Mediation is essentially a low risk opportunity that gives you a high chance of resolving a dispute.
Is there a penalty if I don’t mediate?
Whilst it is not mandatory to mediate, it is strongly encouraged. If you refuse to mediate, you are likely to be penalised by a court when it decides who should pay for the costs of proceedings. Costs, which includes legal fees, can be significant.