Mediation is a voluntary process and a form of alternative dispute resolution (“ADR”). In a mediation, the parties and their legal representatives meet with a neutral third party -the mediator, whose role is to facilitate discussions and negotiations between the parties. The mediator is usually chosen and agreed by the parties based on his or her area of expertise and experience. The end goal of mediation is to settle the dispute.
Prior to the mediation commencing, each party prepares a written summary of its position, accompanied by supporting documents. These are exchanged between the parties and sent to the mediator in preparation for the meeting. The mediation itself begins with a joint meeting between all parties and the mediator, known as a plenary session, where each party sets out its position. This is followed by private meetings in separate breakout rooms. The mediator meets with each party individually to better understand its position and the points in dispute. This, in turn, will lead to further joint meetings between the parties to progress the negotiations. If the parties reach an agreement at the end of the mediation, it is recorded in a written settlement agreement. Once signed, the settlement agreement is binding upon the parties.
Mediation is often a cost-effective alternative to litigation. A successful mediation can avoid the need for Court proceedings, which may be lengthy and expensive. However, it is important to remember that mediation and Court action are not mutually exclusive processes, mediation can be entered into whilst proceedings are ongoing. One key advantage of mediation is that it can be more flexible in that it may present a wider range of solutions than the Court can order.
Mediation is a proven and effective way of swiftly resolving disputes with a high success rate. Many participants find it to be a significantly shorter and less formal process than Court proceedings, which can result in reduced stress. The process of mediation allows each party to retain control over whether or not they choose to settle and what terms are most important to them. Finally and importantly, anything discussed during the mediation is confidential and without prejudice. This means that the parties can make concessions and compromises in the interests of reaching a settlement, without it then being used against them should the claim proceed to Court. Similarly, the parties can agree that the settlement terms reached in mediation must remain confidential between them, in contrast to Court judgments which can be published.
When seeking to resolve any type of dispute, methods of ADR, such as mediation, should always be actively considered; the Court’s Civil Procedure Rules are clear that litigation should be viewed as a last resort. Mediation is suitable and effective for settling a wide range of disputes including both smaller matters and larger, more complex matters. Smaller disputes of a low value, where the legal costs of bringing Court proceedings would outweigh the value of the claim, are particularly suited to mediation. Equally, large matters concerning numerous, complex disputes can be suited to mediation, especially for narrowing the issues in dispute and identifying common ground. Moreover, mediation is particularly effective for resolving disputes where preserving an ongoing commercial relationship between the parties is a priority.
Mediation is a voluntary process however, if Court proceedings are underway, an unreasonable refusal to mediate may be sanctioned by the Court. The Court has a wide discretion and will take into consideration various different factors to determine whether a refusal to mediate is unreasonable. One consideration is whether mediation would have had a reasonable prospect of success. It is likely that ignoring a proposal to mediate, without providing any satisfactory justification, will be considered unreasonable by the Court.
If the parties find themselves in dispute over the fulfilment of the terms of a contract, the contract may contain an ADR clause. An ADR clause provides that if a dispute arises, the parties will use an alternative form of dispute resolution, for example mediation, before taking Court action. In this case, a party that refuses to participate in the specified method of ADR will be in breach of the contract. The Court can enforce an ADR clause, provided that it is sufficiently clear.
It is important to remember that unlike in Court, a conclusion to the dispute is not guaranteed. A settlement must be mutually agreed. The voluntary nature of mediation means that each party is free to leave at any point; if the parties’ positions are too far apart and neither party are willing to negotiate any further, it may not be possible to reach a settlement in this mediation. Nevertheless, narrowing the issues and gaining a better understanding of the opponent’s position throughout the process will undoubtedly benefit each party going forward. It may act as a valuable springboard for settlement discussions in the future or it may shorten the length and reduce the complexity of legal proceedings should they be necessary.
It may be that meeting physically for a mediation is not possible. Where this is the case, a mediation can be conducted remotely. Remote mediations will be conducted either over telephone or more often on a video conferencing platform, such as Zoom. Parties can be separated into virtual breakout rooms, before reconvening (at the control of the mediator) in the main room. This closely replicates the setup of an in-person mediation, allowing for private discussions between the party and the legal representative.
Remote mediation is a valuable tool to progress a dispute towards resolution, especially at times when meeting in-person is not an option. One main advantage is the cost saving, as expenses relating to travel or the hiring of a venue will not be incurred. This cost saving is likely to be significant if the mediation involves international parties. The parties can also benefit from the convenience of being able to participate from home and the flexibility this offers. A remote hearing may be easier to organise around the parties’ existing commitments, and a meeting date is therefore likely to be agreed within a shorter timeframe. In our experience, remote mediation works exceptionally well and there are numerous advantages that make it an option to consider.
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