Understanding Mediation

Settling a dispute in court is costly, complex and stressful. Therefore, parties to a dispute are encouraged to seek resolution through alternative means such as negotiation, arbitration and mediation. These processes are more cost-effective and allow the people involved to come to an agreement between themselves rather than have a solution imposed on them by a judge.

What is mediation?

Mediation is where parties involved in a dispute sit down with a trained, impartial mediator who will facilitate an agreement between them.  It is the most popular form of alternative disputes resolution.

What are the advantages of mediation?

The popularity of mediation rests on the fact it is:

• fast
• low cost
• confidential
• leaves the parties in control of seeking a resolution
• seeks to implement win-win solutions rather than win-lose

When is mediation not suitable?

Mediation is not suitable in all cases.  Examples include:

• where an urgent remedy such as an injunction is sought
• the case is a test case within the industry
• the resolution must be legally enforceable

Can mediation be forced?

Although UK courts cannot force parties to settle their dispute through alternative disputes resolution methods such as mediation, they can impose cost sanctions on parties who stubbornly refuse to consider alternative means of settlement.

Can I use mediation for a small claim?

Yes, since April 2014, a small claims mediation service has been operating.

Can I choose the mediator?

Yes; however, both parties to the mediation have to agree on the person selected.  It is important to find someone who is impartial and experienced, both in mediation and in the area of law the dispute is concerned with.  For example, if you require mediation for a construction dispute, you need someone with knowledge of the construction industry.

How do I submit evidence in a mediation?

The mediator will request the evidence they require and you will need to submit this at least a week in advance of the first mediation meeting.  Witnesses can be called but cannot be compelled to give evidence as they can be in a court of law.

What happens if we reach agreement on some issues but not others?

It is possible to reach a partial settlement with mediation.  It is up to the parties whether they want to accept resolution on some issues, make these binding and then use another form of dispute resolution to settle the other issue.  Alternatively, you may decide it is better to settle all issues at once and in the same forum; therefore, you would disregard the conclusions reached via mediation and move on to another form of resolution.

How does the mediation procedure work?

Generally, mediation follows a process similar to the one set out below:

• prior to the mediation hearing, parties will exchange submissions and evidence with each other and the mediator
• the mediator will make contact with the parties to ensure they are represented by someone who has the authority to settle the dispute (ie a solicitor)
• the mediation will begin with a joint meeting, where opening submissions are heard, then move onto private meetings with the mediator, who will move between the parties to facilitate a final agreement.
• if negotiations are going well, a joint meeting will be conducted, where parties will be encouraged to reach a settlement.
• the settlement will be drawn up and signed, making it legally binding

Mediation is a cost effective way to resolve both large and small civil disputes.  To find out more, contact a solicitor who will explain and move you through the process.