Frequently Asked Questions On Mediation
If your question is not included, or if there are any points on which you require further information, please contact Boris on 033 0001 0961 or email him at firstname.lastname@example.org.
What is mediation?
- flexible (the parties, with the assistance of the mediator, can determine what form the mediation will take);
- cost-effective (when compared to litigation);
- confidential (the information disclosed during mediation cannot be used against either party during court proceedings);
- focused on a workable settlement (mediation allows the parties to control the shape of any settlement, through negotiation, rather than having an imposed judgement that does not meet all or any of their needs as might be the case with litigation or arbitration).
Does mediation work?
Success, however, is not just about impressive rates of settlement. Mediation is also successful because it allows people or organisations that are in dispute to air their grievances in a confidential and safe environment. When given the opportunity to resolve their conflict face to face, parties often discover ways in which they can work towards a mutually beneficial settlement despite any animosity before the day of the mediation. The court process does not concern itself with this type of outcome.
Is mediation suitable for my dispute?
Mediation is suitable for almost all civil and commercial disputes. Mediation is particularly useful where other means of resolving a dispute have failed: for example, simple negotiation.
Compared to negotiation carried out solely by the parties’ legal representatives, mediation has the following additional benefits:
- It allows the parties to be fully engaged in resolving their own dispute while having the ability to consult their legal representatives, if any have been instructed and are in attendance.
- The parties can treat the mediation as their ‘day in court’ by expressing their emotions and articulating their concerns in a safe and confidential environment.
- The separation of the parties into different rooms, during the private sessions, allows legal representatives and their clients to carefully consider each offer of settlement before responding.
- During private sessions, the mediator can assist the parties in identifying strategies, based on exploration of the parties’ needs, to remove deadlock.
- The mediator can also assist the parties in framing offers to increase the likelihood of a settlement.
When compared to concluding the matter at court, mediation has the following benefits:
- The court process results in a winner and a loser, whereas mediation allows the parties to structure a mutually beneficial settlement.
- It allows parties to have their ‘day in court’ in a less restrictive forum than a court (during a trial, the parties would only be able to give evidence as witnesses).
- It is more cost effective.
- The parties have the ability to craft a settlement in a way that takes into account their commercial considerations and any requirements for a future relationship.
- There are remedies that the parties can agree at mediation but which a court has no power to grant: for example, an apology or the commercial details of any agreement for future business.
If you are still unsure whether mediation is suitable for your dispute, please feel free to telephone Boris on 033 0001 0961 or email him at email@example.com.
What if one of the parties refuses a request to mediate?
1. This is an appeal solely about costs. It is also a sad case about lost opportunities for mediation. It demonstrates, in a particular class of dispute, how wasteful and destructive litigation can be.
The court went on to say:
41. As for wanting his day in court, that of course is a reason why the courts have been unwilling to compel the parties to mediate rather than litigate: but it does not seem to me to be an adequate response to a proper judicial concern that parties should respond reasonably to offers to mediate or settle and that their conduct in this respect can be taken into account in awarding costs.
In this case, the court decided that the winner should receive no costs because of an unreasonable refusal to mediate.
When should I mediate?
- fully detailed the issues in correspondence or, if proceedings have been issued, in their statements of case;
- disclosed essential information; and
- quantified the claim and any counterclaim.
It is never too late to mediate. A mediation can be quickly arranged at any point before trial or while an appeal is pending, but there are good reasons to mediate before issuing proceedings at court:
- To save on costs.
- To save time for the parties (a litigated dispute can be extremely time-consuming and detract from time better spent on the business or family life).
- It can assist in clarifying and even narrowing the issues in the event that the matter does not settle at mediation and goes on to be issued at court.
If a sufficiently comprehensive exchange of information that would allow for mediation has not yet taken place between the parties, it is worth considering whether the parties should do so in advance of the issue of proceedings at court or a formal exchange post-issue. This can allow a mediation to take place and save on the costs and time arising from court proceedings.
How should I prepare for mediation?
- Provide the mediator with a written summary outlining their client’s case.
- Provide the mediator with any supporting documents (relevant correspondence and statements of case, for example).
- Prepare a risk assessment that takes into account the strengths and weaknesses of their client’s case.
- Quantify the claim and any counterclaims.
- Calculate the costs incurred up to the date of the mediation and an estimate of the costs that are likely to be incurred if the matter concludes at court.
- Ensure that the persons attending the mediation have the authority to settle the dispute or that they have access, by telephone, to someone with the authority to do so.
- Agree and organise a venue for the mediation to take place or instruct the mediator to book a suitable venue for that purpose.
- In the case of an organisation, ensure that the persons attending the mediation have the authority to settle the dispute or that they have access, by telephone, to someone with the authority to do so.
- As mediations can overrun, parties should try to ensure that they, or any person that they need to contact for authority, do not have any commitments shortly after the mediation is due to end.
- Parties to a dispute should try and consider what is important to them, in terms of a settlement, as this will increase the likelihood of a successful mediation. (This examination of what is ‘important’ could also include non-financial and non-commercial considerations: for example, a wish to exit a time-consuming and stressful dispute.)
What happens during mediation?
1. The opening stage
- The mediator speaks to each party in their private room to outline the mediation process and clarify any points arising out of the papers provided.
- The mediation agreement is signed by all the parties and the mediator.
- The parties and any legal representatives are introduced to each other at a joint meeting.
- The mediator makes an opening statement.
- Every person at the joint meeting has an opportunity to make an opening statement.
- The mediator and the parties have the opportunity to ask questions for clarification.
2. The exploration stage
- This stage can take place in a combination of private and joint meetings between the parties, their legal representatives and the mediator (at the discretion of the parties and the advice of the mediator).
- The parties have the opportunity to discuss their case with their advisers in their private rooms.
- The mediator speaks to each party in their private rooms and assists them in clarifying the issues and identifying their underlying needs.
- The mediator assists each party in reviewing the strengths and weaknesses of their case.
- The mediator helps the parties structure a creative approach to settlement.
3. The bargaining stage
- Settlement proposals begin to take shape.
- The mediator assists parties in framing and timing offers.
- The mediator usually conveys offers, but the parties might wish to convey offers directly at certain points.
- The mediator helps the parties to overcome any deadlock in negotiations.
- There could be a combination of joint meetings between the parties or their legal representatives to clarify certain legal or commercial points.
4. The settlement stage
- If a workable settlement is agreed, the terms of that agreement are recorded in writing, usually by the parties’ legal representatives, and signed by the parties. (Any offers or statements made before any mutually agreed terms are put into writing and signed are not binding on the parties.)
- If a settlement cannot be agreed, the parties and the mediator may wish to agree that the mediation is merely adjourned to allow further negotiation to take place, or the mediation will come to an end.
- The mediator will check in with the parties or their legal representatives shortly after the mediation day to discuss the possibility of a settlement.
How much does mediation cost?
The fees for a full day (8 hours) or half day (4 hours) mediation are outlined in the fees section to this website.
Some mediators charge for preparation time, travelling time and travelling expenses in addition to the time billed for the mediation day. The fees quoted on this website include these items and offer an easy and predictable way for you to calculate the cost of your mediation. A written quotation can be provided on request.
When assessing the cost of mediating your dispute, it is important to remember that a mediated settlement is far more cost effective than concluding the matter at court.
If you have any special requirements, or just wish to discuss the fee structure, please contact Boris on 033 0001 0961 or email him at firstname.lastname@example.org
Is a mediator like a judge or an arbitrator?
A mediator is a neutral person who assists parties in reaching a negotiated settlement of their dispute within the flexible mediation process.
A mediator does not
- impose a settlement on the parties;
- preside over a formal, rigid and adversarial process at the end of which he or she issues a binding decision; and
- focus only on past events and the background to the dispute.
- assists the parties in negotiating a settlement that is workable;
- manages an informal, flexible and cooperative process where the parties work together towards reaching a mutually beneficial settlement; and
- deals with the circumstances leading up to the dispute but also looks at ways in which the parties can move on and possibly have future dealings together, if appropriate.