What is Mediation?

What it is
Mediation is a key form of Alternative Dispute Resolution (ADR). Alternative here means an alternative to having a decision imposed by a judge in court.

Mediation is a consensual process, based on self-determination that involves the participants in the dispute, together with their lawyers, advisers, or supporters, if they have any, meeting with a neutral third person. The mutual aim is to find a resolution to the dispute or problem that the participants face.

It is a confidential and without prejudice activity that allows the participants to explore the full range of potential solutions in a safe environment. The neutral, or mediator, may encourage the use of principled negotiation, based upon reason and objective criteria. The mediator may reality-test the perceptions of fact, advantage, risk, and cost; and thereby assist the participants to find a mutually acceptable solution.

What is Mediation?

What it is not
What it is not Mediation does not involve the mediator telling the participants the solution - or even venturing suggestions. It is for the participants themselves to find, with the mediator’s assistance, and to agree a solution that meets their needs, concerns, and in remains with the participants. It does not involve the mediator telling the participants what a judge may or will do, or who is right or wrong. Nor does it involve the mediator assessing the merits of the case: after all, the mediator may not be aware of all of the information, or even the relevant law.

Mediators are commonly not lawyers and participants generally bring their own advisors, mediators do not need to be experts in the legal context of the dispute.

Why mediation is cost effective

The reality of a dispute
If you have a dispute, the unfortunate ones amongst you will have had the distinct, unpleasant experience of having to instruct a Solicitor.The Solicitor would normally be instructed because either a/ you were pursuing a customer for payment perhaps, or b/ you were being pursued by a customer and had received a Solicitors letter threatening you with the list of many bad things be heaped upon you if you did not give-in, and acquiesce to the demands outlined by the customer. Either option listed above will cost you lots of sleepless nights, lots of reviewing of the evidence (‘there is nothing wrong with the installation’) and cost you lots of money!

The facts of life regarding a dispute (after my 30yrs plus of experience) are this: The costs awarded against the losing party far outweigh any damages awarded by the Court, e.g. if a customer is suing you for £15,000.00 the matter would probably take 12 - 18 months to get to a final hearing and both parties would then have paid at least £30 - £40K in Legal and Professional Fees. Usually, the costs are borne by the unsuccessful party, therefore the unsuccessful party would find themselves with a bill of £60 - £80K in costs, plus any damages awarded.

No the best option by far is Mediation. Mediation is quick, intense and inexpensive. The Solicitors do not care for Mediation, as it affects their Fee earning power. But Mediation works and it works on the principle of ‘jaw jaw’ - the Mediator facilitates discussion between the parties and a resolution is found in 99% of cases. Whereas Litigation is ‘war war’, where you are at war against the other party, and the Solicitors are just whipping-up the troops. (and earning fees).

What can I send the mediator?

You can send the mediator anything that you think will be helpful. You can send an agreed mediation bundle compiled with agreement of your opponent, or you can each send a set of documents to the mediator that are not agreed.

You can send a summary of issues agreed and issues in dispute, compiled with the agreement of your opponent, or you can send a confidential position statement to the mediator, for the mediator’s eyes only.

What can I send the other side?

Before the mediation, you may wish to show relevant documents to your opponent in order that they may read them before the mediation. You may wish to send a position statement to them setting out your case. You may wish to refer them to relevant case law. Or you may wish to send them nothing at all.

Should a participant go into the open session?

Generally, all of the participants will go into one room with the mediator for the opening session. There the mediator will remind them of his role and the purpose of the mediation and ask them to adopt any rules that may be useful in the mediation.

The opening session starts with the housekeeping instructions, then the process is explained, then the participants are invited in turn to say anything they wish to say to one another face to face. The mediator will listen, may ask questions in clarification and will then agree the way forward for the mediation process with the participants.

Some participants refuse to go into open session initially, or there may be very good reasons why they cannot go into private session, such as an injunction. If there is a particular reason why a participant feels they do not wish to go into the open session, then discuss this with the mediator beforehand. The medias to allay any fears or concerns, or will be able to advise alternative start the mediation, such as housekeeping and opening statements in private participant's room. Legal advisors may consider it totally inappropriate client to go into the open session, for example, where they lack capacity.

Should a legal advisor let a client participant speak?

Yes, but do make sure that you have discussed what they intend to say beforehand! The mediation day is often seen by lay clients as the equivalent of their day in court It can be a very cathartic process for them to finally be able to say how they feel about the dispute. Sometimes clients get very emotional, others may be intimidated speaking to an audience of professionals. Where there is an ongoing relationship, where trust has been eroded, or dialogue has broken down, the open session can form a crucial part of the transformative process of rebuilding trust or restoring confidence.

Must all questions be answered?

There is no requirement to answer any questions that are posed to you, or indeed by you in open session. Mediation is not about rehearsing the evidence or cross examining a witness. It is about finding a resolution that is good enough on the day. You should though consider whether it would assist the process of negotiation no to answer questions. You should not feel pressurised to answer questions when you are asked, and might prefer to take time out of the open session to discuss privacy the questions raised and how to respond to them.

Is there any value in making an apology?

In many mediations, there is the opportunity to make an apology. An apology can often transform the approach to the mediation. It can be a valuable foundation to lay which will then set the tone for the negotiations. If it is to be made it should be considered and its tone carefully judged, and the appropriate person - participant or advisor - to deliver it chosen.