Gardner Leader

How Does Mediation Work?

Introduction

Mediation is a structured negotiation process which leaves the parties in control.  The mediator helps to move the negotiation forward but does not judge or impose a decision or solution. 

The solution to the dispute will be one which the parties arrive at in their own commercial interests.  A court can only make a decision based on legal rights and obligations, usually in the form of an award of money.  A mediated settlement can be much more flexible and take into account wider interests such as future relations between the parties.  It may even be as simple as one party getting an apology from the other.

A mediation allows the parties to look to the future by considering what are the interests of each party now and going forward, rather than focussing on what has happened in the past.

The role of the mediator

The mediator is a trained, independent third party.  It is not the role of the mediator to work out who is right and who is wrong, or to decide what the solution should be.  He will not give legal advice.  The mediator’s task is to help the parties to reach a solution which satisfies them. 

The mediator will discuss the case with each party to try and identify the issues which are important to each side and which need to be addressed by any settlement.  He will not express a view on the strength or weakness of a party's case but will discuss the issues objectively.  The mediator will encourage the parties to consider alternative solutions and to consider what will happen if the mediation does not succeed – what are the best and worst alternatives to a negotiated solution?

The mediator may play ‘Devil’s advocate’ and test the reality of propositions put forward by the parties.  He may encourage them to put themselves in the shoes of the other party and consider what it would take from their point of view to resolve the dispute.  He will not push the parties towards any particular outcome.

Confidentiality

Anything which a party tells the mediator remains confidential unless that party authorises the mediator to communicate it to the other party.  As a result the parties can speak openly and frankly to the mediator in order to enable him to build up a complete picture of the issues surrounding the dispute.

Mediations are conducted on a ‘without prejudice’ basis – information disclosed, arguments raised or concessions made cannot be used against a party in litigation if agreement is not reached in the mediation.  This gives the parties considerable freedom to put forward possible solutions without having to worry that they will be used against them later if the mediation does not succeed in resolving the dispute.

The procedure

While mediation is a flexible and informal process, a certain amount of procedure is required in order to ensure that it runs smoothly.  The procedure can of course be adapted to meet the needs of the particular case.

Mediation is a voluntary process and so can only be used if all parties agree.  It may be that the parties first agree to use mediation and then set about identifying a mediator that they are all happy with.  Alternatively, one party may approach a mediator and the mediator then seeks to secure the agreement of the other parties to participate in the mediation.  Only if all parties are happy both to take part and with the identity of the mediator can the mediation proceed.

The parties will then sign a written mediation agreement which sets out the basis of the mediation, including the fact that it is confidential and ‘without prejudice’.

The parties may exchange written position statements to be sent to the mediator and the other parties along with any key documents.  They may each also prepare a separate statement for the mediator’s eyes only to give him, on a confidential basis, a clearer idea of their view of the dispute and what it will take to settle.

The parties will then assemble at an agreed venue.  At an opening joint session, each party will have the opportunity to briefly set out its position in relation to the dispute.  These opening statements would not normally last more than about 10 minutes for each party.

The parties then adjourn to separate rooms and the mediator will move between them to hold private meetings with each party to explore the issues further with them.  Nothing which the mediator is told in these private meetings can be disclosed by him without that party’s authority.

Either at the end of the mediation or at other suitable points during the meeting, the mediator may decide that it is appropriate to hold a further joint meeting.

If agreement is reached, the terms of settlement will be recorded in a written agreement (usually drawn up by the parties’ lawyers).

Generally a commercial mediation would be expected to last for one day.  They can be arranged at quite short notice.

Who should attend?

It is essential that each party has someone at the mediation who has full authority to settle the dispute without having to refer to anyone who is not present.  If this is not possible for any reason, this should be discussed with the mediator and the other parties prior to the day of the mediation meeting. 

It is not necessary for parties to have legal representation but in most cases this will be helpful.  The mediator cannot give legal advice.

Attitude

Parties should attend the mediation with a willingness to explore alternatives, to look forward rather than back and to be flexible in their approach.  It is unlikely that a solution will be arrived at immediately so a certain amount of perseverance will also be needed.

Why mediate?

A better question might be ‘Why not?’  In most cases, there is little to lose – and much to gain – by trying.  The cost of a day in mediation will be much less than the cost of protracted litigation.  Even if it does not succeed in settling the dispute, it may narrow the issues so that ongoing litigation can be more focussed and therefore cheaper.  The confidential and ‘without prejudice’ nature of the mediation mean that it cannot be used against a party if it fails.

What does it cost?

The mediator will charge a fixed fee, agreed in advance and shared between the parties, which will depend upon the complexity of the dispute and the length of the mediation meeting.

For further information or to arrange a mediation, please call Derek Rodgers on 01635 508181.

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