×

Warning

JUser: :_load: Unable to load user with ID: 400

Mediation

1. What is mediation?

It is a means of settling disputes by agreement rather than having them decided by Court proceedings or arbitration. The parties agree to appoint a mediator who encourages and leads discussions between the parties. Unlike a judge or arbitrator, a mediator cannot impose a decision on the parties. The process is confidential so the details of the discussions cannot be referred to outside the mediation.

2. Who is the mediator?

He is an independent professional chosen by the parties who usually has training and accreditation as a mediator. In the case of technical disputes, the parties can appoint a mediator with particular technical expertise. Independent lawyers can also act as mediators, although it is not part of their role to advise during the mediation.

3. Does the mediator decide the dispute?

No. He identifies points of agreement, helps to define and narrow points of dispute, and encourages the parties to consider a range of possible options to try to find a basis upon which they might settle. The mediator does not decide who is right about the facts or law. To some extent he may use his own views as one of the tools to reach settlement. He will not, however, force either party to accept his views.

4. Is my case suitable for mediation?

You should consider mediation if the costs of litigation or arbitration are likely to be disproportionate to the value of the claim. You should also consider it if you wish to maintain amicable relations with the other party; or for the dispute to remain in private if it would otherwise go to Court. Litigation is in the public domain. Both mediation and arbitration are confidential.

Not all cases are suitable for mediation.  Examples of cases where it may not be the best option include:

  • Cases where uncompromisable points of principle are at stake: for example where there are allegations of fraud
  • Where the outcome of a dispute may depend on extensive cross-examination in the witness box
  • For straightforward cases, an application for summary judgment may be quicker and more effective
  • If there is an important point of law which must be tested in the Courts or a legal precedent is sought
  • If settlement discussions are progressing well
  • If you require an emergency injunction or protective relief.

There is often an optimum time for a mediation to take place, which may not necessarily be at the beginning of a dispute, before all relevant facts are known on each side. We can advise you on timing as well as procedure.

5. What are the principal advantages of mediation?

There is a good rate of success in achieving settlement by mediation. One of the leading mediation bodies, CEDR maintains that about 80% of its cases settle at the mediation or shortly after.

If a settlement is achieved, it will:

  • save time and legal costs
  • avoid the risk of losing Court proceedings or an arbitration
  • ensure confidentiality
  • allow for the possibility of a continuing commercial relationship between the parties.

6. What does mediation cost me?

Mediation is relatively cheap. Each case is different, but it may be one-fifth to one-tenth the costs of litigation or arbitration to a final decision. However, unlike those options, mediation is not guaranteed to end the dispute. Agreement might not be reached. You may pay for it and still have to litigate or arbitrate.

The parties are almost always responsible for their own costs and an equal share of the mediator's fees , whatever the outcome of the mediation. We can give you an estimate of costs for taking a matter to mediation.

7. Is there any element of compulsion in mediation?

No. Even when mediation is ordered by the Court, it is voluntary in the sense that, after it starts, you are always free to walk away and you do not have to agree a resolution you are not happy with. However, if mediation results in the signing of a settlement agreement, that agreement has binding legal effect.

8. How long does mediation take to set up?

Once the parties have agreed to mediate, the preparation might take a month or two, but it can be done in much less time if there is urgency. However, if the urgency to end the dispute is one-sided, there is an obvious risk of a bad settlement if the party under pressure reveals the time factor.

9. How long does the mediation take?

This is predominantly determined by the attitude of the parties, but can also be affected by the complexity of the dispute and the number of separate issues which are involved. It can take only a few hours but usually takes an entire business day and often continues after hours, although it very rarely breaks to continue the following day. As mentioned above, even if agreement is not reached, mediation it can often bring the parties closer together so that a settlement is subsequently agreed.

10. If I suggest mediation will it be seen as a sign of weakness?

Mediation is now so common that the other party rarely sees it as a sign of weakness. In litigation, the Court encourages settlement and usually directs the parties to consider mediation when exercising its case management powers. A mediation may even be ordered. Besides, conduct on the day will dispel any mistaken perception of weakness.

11. When is the best time to propose mediation?

This will vary from case to case. Mediation may be attempted at the outset of a dispute if the parties are ready for it. However, the further advanced a Court claim or arbitration the better the parties’ understanding of each other’s case. Also they will have experienced some of the costs of proceedings and should appreciate the desirability of avoiding more. Therefore, mediations some way into adversarial process may be more likely to achieve settlement, but this comes at the cost of higher fees in that process.

12. Who should attend the mediation meeting?

Those with authority to conclude an agreement and with most knowledge of the dispute.

Additional information