What is mediation?
The purpose of this quick guide is to explain what mediation is and how it works in civil disputes. (Note that mediation has a different meaning in family proceedings and this guide does not address that context).
Mediation is an intensive discussion process managed by an independent trained mediator who attempts to bring about an agreed settlement of the dispute in question. The mediator does this by talking to each of the parties in the dispute and exploring with them the terms upon which they are prepared to settle. The mediator acts as a “go between” but his role involves much more than shuttling back and forth bearing offers and counter-offers. His skill lies in getting each party to think carefully about the strengths and weaknesses of their respective cases, to think about the potential outcomes of (any) court proceedings if the matter is not settled and to identify areas of common ground between the parties upon the foundations of which a settlement can be built.
Everything that takes place at a mediation is strictly confidential and on a “without prejudice” basis. A mediator cannot subsequently be called to give evidence in court. Nor is it the mediator’s role to sit in judgment upon the dispute or upon the parties. Judges are, broadly speaking, pro-mediation and will often encourage parties to give it a try. There can be cost consequences for a party who refuses to participate in mediation. A court might well refuse to award costs to such a party, even if that party is ultimately successful at trial.
Where the parties agree to mediate, the first step is to appoint a mediator. The parties themselves may know of someone suitable to act as mediator. However, it is common in practice to approach a specialist organisation which will put forward names from its panel. The parties then jointly select one of the names put forward and try to agree a date for the mediation to take place.
One a mediator is selected, each party will prepare a mediation statement. Its purpose is to explain what the dispute is about, to summarise the party’s view of the dispute and to describe any negotiations that have taken place up to that point. The statement is lodged with the mediator and with the other party (or parties) a few days before the mediation is due to take place.
A venue will need to be organised for the mediation. This might be the mediator’s own office, or that of one of the solicitor’s for one of the parties involved, or a neutral venue, such as a hotel. A typical mediation will last a day but it can be a shorter or longer period. It is usual for legal representatives to accompany clients to mediation, although not compulsory. Each party attending the mediation must be represented by someone who has full power and authority to conclude and sign a settlement on the day. If a settlement is reached at mediation, this will commonly be reduced to a written agreement by the parties’ solicitors and then signed before the parties leave the mediation venue.
A mediation will generally begin with all parties in one room. The mediator will give a brief summary of how the mediation will progress. Each party will then be given the opportunity to introduce members of their negotiating team and to make a short, informal presentation setting out their position. Usually, both sides will then decamp to their own allotted rooms. The mediator will then come and meet individually with both teams. For the rest of the day, he tends to move between the two. Often, the parties do not see each other again until a settlement is agreed or until the mediation ends without agreement.
If it proves to be impossible to reach a settlement agreement during the mediation, the parties can continue to negotiate in the days and weeks following.
The costs of a mediation are usually born in equal portions by the parties involved.