Mediation is a process of settling disputes.
In the context of civil proceedings, it is a confidential process that involves the appointment of a third-party mediator who helps the parties to discuss the issues and hopefully reach a resolution.
If the parties agree, mediation can take place at any point during the dispute.
This can be before or after court proceedings have been issued.
Usually, each party will be present with their solicitor and/or barrister.
At most formal mediations there are usually 6 stages:
- Introductory remarks
- Statement by the parties
- Information gathering time
- Identification of the problems and issues
- Negotiation and generating options
- Reaching and concluding an agreement
Introductory remarks and statements
The mediator will wait until both parties are present before introducing those in attendance.
The mediator outlines the role of the participants and emphasises the mediator’s neutrality.
Some mediators will make comments about what they see as the issues and confirm the case facts if written case summaries have been submitted by the parties.
Next, the mediator will define the protocol and set the time frame for the process.
Mediations can be short over a morning but are often all day and can run into several days in more complex cases.
There will be a review of the mediation guidelines and the mediation agreement that the parties will have signed before attendance.
The mediator will set out the ground rules for the mediation.
These ground rules are what help the mediation move along smoothly. The mediator will usually ask that if lawyers are present, they can confer, but will often encourage the parties to speak for themselves if they wish.
The parties tare then given the chance to make an opening statement.
Sometimes the statement is given by lawyers but the parties may wish to read a statement themselves. The purpose is to give each side the opportunity to tell their story uninterrupted, if they wish.
Most often, the person who requested the mediation session will go first.
The statement is not necessarily a recital of the facts, but allows each party to be heard from their own point of view.
The rationale behind the parties making statements is not a search for the truth but it is just a way to help solve the problem.
This stage of the process sometimes will not take place with the parties together.
The parties may decide that they do not wish to be in the same room as each other.
Mediation can still be successful if done in this way. The initial meeting could take place with lawyers only, or there may be no such meeting and the mediator simply meets with each party, by way of introduction, separately.
It is also often the case that statements are written by the parties and exchanged or just provided to the mediator, instead of being read out.
Whether the mediation is held in person or remotely, usually each party has their own room and the mediator will share time between the two and facilitate.
Information gathering and problem identification
The mediator will often ask the parties open-ended questions to get to the emotional undercurrents.
The mediator may repeat back key ideas to the other parties and will summarise.
The mediator will hold private sessions with both parties in order to move the negotiations along.
The goal of the sessions is to find some common ground by exploring lots of options and to bring about possible solutions for the parties to think about.
Parties can also entertain alternative solutions to their problems without committing themselves to offer the solutions as concessions.
These discussions are confidential, and the mediator will not disclose anything that is discussed in any private meeting to the other party without permission.
Negotiation / reaching an agreement
It is always hoped that the mediation will reach this stage.
Methods for developing options for settlement may include group discussions with all the parties present, discussion groups or subgroups, developing hypothetical plausible scenarios, or a mediator’s proposal, where the mediator puts a proposal on the table himself and the parties take turns to address and or modify it.
Once the parties are committed to achieving a negotiated settlement, the mediator may propose a brainstorming session to explore potential solutions.
Alternatively, the lawyers may meet separately to discuss the finer details.
This can lead to a final agreement which will be committed to writing and signed by the parties which will, in most cases, be in full and final settlement of the claim or dispute as a whole.
Benefits of mediation
Whilst mediation is still an expense, it is very likely to be a much more cost effective way of resolving a dispute than embarking on court proceedings.
Mediation allows the parties to have control over the outcome, as the terms of the settlement can be flexible and include other matters that may not strictly be before the court.
In court, a judge makes the decision, but in mediation the outcome can be one that the parties have each had a say in and have compromised on.
Solicitors will usually advise clients that litigation is always a risk, and can be an expensive risk to take.
Mediation is a way of finding a solution that avoids risk and provides certainty for the parties.
Disputes that end up in court can take 1-2 years to resolve in many instances. A mediation generally lasts 1 day, and if it is successful an end is brought to the dispute itself immediately.
As mediation is confidential, if it does not work then anything discussed or said cannot be used against you in the formal court process.
There have been decisions by judges whereby parties have been criticised, and penalised with greater costs, for refusing to attend mediation and attempt it, unreasonably.
It is therefore important to consider the offer of mediation carefully and take it seriously.
Similarly, offering mediation to the other party can increase the pressure upon them.
Sometimes, the relationships between the parties can be maintained when mediation is utilised particularly as the parties can be more creative with the solution they want to achieve.
Advice on mediation
At Marsden Rawsthorn, our Dispute Resolution solicitors have attended and been involved with many successful mediations.
We utilise mediation services that we know and trust, and can facilitate the mediation in person at our Preston office making it as comfortable and easy as possible for you.
Mediation can be used to resolve most disputes, particularly:
- Negligence claims
- Breach of contract claims
- Neighbour disputes
- Harassment claims
- Boundary or property disputes
- Wills and estate disputes
- Defamation claims
- Intellectual property claims
- Company, director or partnership disputes
- Debt or money claims
If you’re looking at using mediation to resolve your dispute and need representation and advice, as well as help to set it up or offer it, then get in touch to speak with a member of our Dispute Resolution Team on 01772 799 600.
Article by Katy Rider