Frequently asked questions

  • What is mediation and what are the benefits?
    • 1. What is mediation?

      Mediation is one of a number of Alternative Dispute Resolution processes which is engaged in by parties to a dispute with the intent that such should be resolved without the need for either to be drawn into litigation or, if they have been already, be the subject of an adjudication at a trial. By agreement between them, the parties to the dispute appoint a Mediator whose task it is to assist the parties in achieving a resolution to their dispute. This he or she does as a neutral and as someone who is trained as a Mediator.

    • 2. What are the key beneficial elements?

      One of the key elements of the mediation process is that of confidentiality. This the parties “sign up to” on a contractual basis before the mediation is commenced. The nature and extent of that confidentiality applies in such a way that all of the discussions and negotiations that take place during the course of the mediation, and all paperwork produced for it (save for that which is necessarily disclosable in the course of any subsequent litigation) is treated as being without prejudice to each party’s arguments and rights in the dispute. It follows therefore that if the parties fail to achieve a settlement at mediation, with the consequence that Court proceedings are then adjudicated upon at trial, the Judge will not be informed of what took place at the mediation: nor therefore of the discussions that there were concerning each party’s proposals for settlement. Additional important key elements of the mediation process are that firstly it is voluntary and secondly if a resolution to the dispute is reached, such is both created and owned by the parties rather than it being imposed upon them by a Judge at trial in the form of a Court Judgment.

    • 3. What other ADR processes are there?

      Conciliation, stakeholder dialogue/consensus building (through without prejudice discussions, very often conducted on a “round table” basis through solicitors), neutral evaluation and judicial appraisal. In the case of the last two, beforehand the parties sign up to a contract in which it is agreed that whatever the outcome finding, it shall be binding and that there will be no right of appeal or other referral to the Courts.

    • 4. Will mediation provide a resolution to my dispute?

      Very probably. Statistics maintained by CEDR (www.cedr.com) and other mediation providers evidence the fact that since the early 1990s, year on year nearly 80% or so of commercial mediations have resulted in a settlement on the mediation day or within 14 days thereafter.

    • 5. Am I obliged to mediate?

      No. However, you would be most unwise not to consider mediation or some other form of ADR as a means of resolving your dispute. Similarly if you unreasonably refuse to accept an invitation made by your opponent to join with him or her in engaging the services of a suitably qualified Mediator. The reasons for this appear immediately below.

    • 6. Are there any disputes which are unsuitable for mediation?

      Yes but very few. Examples are in cases when a legal precedent is required or, alternatively, when a party to a dispute needs to obtain immediate injunctive relief by way of a court order. Another reason for not mediating may be when there are already in place constructive without prejudice negotiations between the parties which provide them with reasonable prospects of achieving a settlement without having to incur the costs of a mediation.

    • 7. Is mediation a good means of seeking to resolve disputes in the workplace?

      Yes, providing that mediation is conducted by a suitably trained mediator who is able to play a wholly neutral role in assisting the parties to reach a resolution to their differences. The benefits are manifold. By way of example, experienced HR advisors know that early mediation can not only save but strengthen relationships within the workplace among employees. Similarly, it can much reduce the risk of an employer having to face one or more potentially successful constructive dismissal claims made by disaffected employees.

    • 8. Can there be a mediation after Court proceedings have been instituted?

      Yes and the sooner the better.

    • 9. What is the role of the Mediator?

      As a neutral and on the joint instructions of the parties to the dispute, it is for the Mediator to manage a process which is conducted with the sole aim of helping them achieve a resolution to their dispute. In doing so, the Mediator will strive to create an environment in which the parties feel comfortable and secure when sharing confidentially, and on a strictly without prejudice basis, their differences as well as exploring the reasons for them. Similarly when it comes to encouraging the parties to think about how those differences may be resolved. Importantly, they should appreciate that the Mediator must not be judgemental in his or her approach to the dispute: instead the Mediator’s role will be solely a facilitative one. By way of analogy, it is not for the Mediator to build the proverbial bridge which divides the parties: conversely it is for him or her to identify the building blocks which when given to them will help the parties build that bridge.

    • 10. What happens if a settlement is not reached?

      Either party will be at liberty to commence or further prosecute legal proceedings. Meanwhile, if asked to do so, the Mediator will continue a confidential dialogue with both parties and do so with the aim of continuing their attempts to reach a settlement.

    • 11. If a settlement is not reached and the subsequent prosecution of Court proceedings leads to a trial, will the Judge be told what happened during the mediation?

      No, although most mediation agreements provide for the parties to be able to tell the Judge whether or not a mediation has taken place and if so whether it proved possible for some of the parties’ differences to be resolved.

  • The Mediation: how is it set up and the process then progressed?
    • 1. When should the mediation take place?

      As soon as the facts and issues are clear and the parties (and their legal advisors if instructed) are fully prepared for the mediation. Ideally it should take place before Court proceedings are issued. Furthermore, it is important to bear in mind that liability need not be established, nor conceded, before a compensation remedy is discussed and hopefully agreed at a mediation. Obviously, the sooner one takes place the greater the chances of significantly reducing legal costs.

    • 2. Where should the venue be for the mediation?

      At one which all parties to the dispute feel is appropriate after having had regard to not only geographical considerations but also the need for privacy. Often the parties will want the mediation to take place “on neutral territory” such as at a hotel or in a virtual office environment. Quite frequently though mediations are held in the offices of the solicitors representing one of the parties. Wherever the venue, it is essential that parties and their advisors feel comfortable with and secure within the accommodation provided for them at the mediation venue: by way of example, it is essential that conversations that are highly confidential are not overheard as a consequence of ineffective sound-proofing or by virtue of the parties occupying rooms which are located too near to each other. Ideally, three rooms should be set aside for the mediation, one being for use when the Mediator brings the parties together in joint open session and the other two being available for private discussion between the Mediator and an individual party along with his or her legal representative.

    • 3. What steps need to be taken before the mediation day?

      Once the parties have agreed upon the identity of the Mediator and when and where they want the mediation to take place, it is usual for the Mediator to provide them with a suggested timetable commencing with the date when the formal agreement to mediate is to be signed and ending with the mediation day itself. In the meantime, dates will be agreed for the preparation of an agreed mediation bundle and the simultaneous exchange of Position Statements. Similarly for the Mediator to engage in private pre-mediation discussions with the parties or their legal representatives. It is essential that the parties and any representatives instructed by them come to the mediation well prepared: if they do the chances of there being a failed mediation will be much reduced. The facts and issues need to be well rehearsed and exchanged in writing before the mediation day. On the occasion of it, all relevant documentation should be available and key information such as the amount of a party’s costs to date and estimated cost to trial is known so that it can be disclosed at the mediation if one or both parties think it appropriate to do so, which it usually is. A further and vitally important prerequisite to be sure about prior to the mediation is that all or any decision makers are going to be in attendance; or at the very least will be available throughout the course of the mediation to provide their instructions in regard to the terms of the settlement and give final authority for it to be signed off. By way of example if a party to a dispute is reliant wholly or in part upon their insurer funding the settlement, a representative of it will almost certainly need to be in attendance or available over the telephone.

    • 4. Who should attend the mediation?

      The parties together with any person or persons who they feel would be of assistance in providing emotional or physical help, very probably the parties’ legal representatives if they have advised previously and, as mentioned above, any person or persons who for one reason or another are going to play a part in the decision making process: or otherwise need to give authority for a settlement to be signed off. Occasionally it is the case that the mediation process will benefit through having available expert witnesses or non-legal advisors, such as accountants.

    • 5. What documents need to be available before and at the mediation?

      Those that are relevant to the issues and facts of the case: particularly those which provide evidence in support of each party’s factual stances in the matter. Ideally all such documents should be collated within an agreed and paginated mediation bundle which should be finalised before the parties come to prepare and exchange their Position Statements. If one or both of them wish to disclose a confidential Position Statement to the Mediator “for his eyes only”, that can be done. If Court proceedings have been issued, copies of the pleadings and any Court Orders made to date should be included within the agreed mediation bundle.

    • 6. Will I need to say anything at the mediation?

      Yes, unless you are represented by somebody else, e.g. a lawyer, and choose to say nothing yourself when in the company of your opponent on the occasion of the joint opening session or any other joint sessions that take place. Having said that, Mediators will always encourage dialogue, not least because the greater the dialogue between the parties the better their understanding of their respective positions: and thus often the greater the chances of a settlement being achieved.

    • 7. What happens on the mediation day?

      At the beginning of the mediation, invariably the Mediator will engage in private discussions with the parties before they are invited to say whether or not they wish to engage in a dialogue to be conducted in what is a joint opening meeting. Thereafter, there may well be a series of private meetings (often called ‘caucuses’) conducted between the Mediator and the parties: and on occasions meetings conducted alone between the Mediator and the parties’ legal representatives, should the parties be agreeable. If a settlement is reached, such is documented in the way as outlined above (see Mediation Services and then Mediation Described).

    • 8. How long will it take?

      Impossible to say unless the parties agree to the mediation being time-bound, i.e. that it will last no more than, say, half or a full day. In practice though it is unusual for two party mediations to last more than 8 or 9 hours unless the issues are complex or there is a need for further information or advice which cannot be made available immediately with the consequence that the mediation needs to be adjourned for a short period of time.

  • Do I need legal advice before or representation at the Mediation?
    • 1. Do I need a lawyer to represent me?

      No. However, it is usually advisable for each party to instruct one or at the very least have their lawyer available over the telephone should legal advice be required during the mediation. Here it should be borne in mind that very often a lawyer’s training and experience is required when it comes to drafting up the documentation that will be needed to give contractual effect to the compromise reached between the parties.

    • 2. Should I seek legal advice before the mediation?

      Yes, because once armed with it you will be better able to evaluate the strengths and weaknesses of your case and hence be better prepared to consider or make realistic proposals for settlement.

  • What will it cost to mediate and who pays the Mediator?
    • 1. What is the mediation likely to cost?

      Often this will depend upon the value of the claim or any counterclaim (whichever is the highest) rather than the complexity of the matter. Where more than two parties to the dispute are involved, the charges will greater. Some Mediators will provide their services on a fixed fee per day basis and others charge on an hourly rate basis. Please download our Terms of Business and then read about the basis of charge that we normally apply. We will be more than happy to discuss a different basis of charge to that which primarily relates to the value of the claim or counterclaim. Travelling expenses and any other disbursements are also charged.

    • 2. Who pays the Mediator?

      It is usual for parties to contribute equally towards the Mediator’s fees and out of pocket expenses.

  • What if I or my opponent refuse to Mediate?
    • 1. What if I unreasonably refuse to mediate?

      Due to the existence of a number of different Civil Procedure Rules Pre-Action Protocols (see Documentation & Resources page), it is highly likely that a claimant party will invite a defendant party to mediate. If that invitation is unreasonably refused there is a strong possibility that such a finding made by the Judge following on from a trial will result in the party who refused to mediate being penalised by way of some form of Adverse Costs Order.

    • 2. What if my opponent unreasonably refuses to mediate?

      Due to the existence of a number of different Civil Procedure Rules Pre-Action Protocols (see Documentation & Resources page), it is highly likely that a claimant party will invite a defendant party to mediate. If that invitation is unreasonably refused there is a strong possibility that such a finding made by the Judge following on from a trial will result in the party who refused to mediate being penalised by way of some form of Adverse Costs Order.

    • 3. When is it likely that a Judge would find that it was unreasonable to refuse to mediate?

      In circumstances when at the time of a party rejecting an invitation to mediate there was no good reason for him or her to do so and further that at the material time there was a realistic prospect that engaging in mediation would have very probably brought about a settlement and at a much smaller spend in legal costs when compared with those incurred as a consequence of Court proceedings having had to be adjudicated upon at trial.

  • Documenting the settlement and confidentiality
    • 1. What happens if a settlement is reached?

      If a settlement is reached at the mediation, it is documented on the day in a way which brings about a contractual compromise and one that can be enforced through the Courts should one party to the dispute renege on the terms of settlement. In those circumstances it is not necessary for the complaining party to engage the Court in having to decide the rights and wrongs of the circumstances giving rise to the original dispute.

    • 2. What happens if a party to a settlement reneges on it?

      In those circumstances it is not necessary for the complaining party to engage the Court in having to decide the rights and wrongs of the circumstances giving rise to the original dispute. Instead the complaining party need do no more that rely on the contractual compromise agreement signed at the end of the mediation and if needs be invite the Court by way of a summary judgement application to enforce the terms of settlement

    • 3. Will the terms of the settlement remain confidential?

      Yes, unless both parties agree to the contrary.

"Kevin was 'brilliant'. He made me feel so comfortable and I hadn’t expected to. I felt very comfortable going into the mediation. He had spent a lot of time the week before working with me and talking about the issues... he brought gravitas and stopped the whole process from breaking down."

  • Mediation Services

    Mediation is one of a number of Alternative Dispute Resolution processes which is engaged in by parties to a dispute with the intent that such should be resolved without the need for either to be drawn into litigation or, if they have been already, be the subject of an adjudication at a trial

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  • Other Services

    Kevin Smyth shall be pleased to provide advice upon what other dispute resolution processes can be provided and which may be suitable. Similarly recommendations can be made as to where appropriate and competent legal advice can be readily obtained.

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  • About Mediation Resolution

    Kevin Smyth is a full-time Commercial Mediator having been trained and accredited as such by CEDR in 1997. He also acts as a Dispute Resolution Advisor.

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