- Mediation Described
- Should Mediators be accredited if they are to be instructed
- What is the Mediators role?
- The Mediation Process
- Virtual Online Mediations
- Workplace Mediation
- Can a Court order the parties to Mediate?
- What are the benefits of Mediation?
- Beware of refusing Mediation
- Further information
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 then 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.
In much the same way, a Mediator can assist individuals within a workplace environment who have issues or are in dispute with one another, or their employer, in helping them put paid to their differences.
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 mediation, and all paperwork produced for it (save for that which necessarily is 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.
Other 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 and rather than it being imposed upon them by a Judge at trial in the form of a Court Judgment.
Statistics maintained by CEDR ( www.cedrsolve.com) and other mediation providers evidence the fact that since the early 1990s, year on year some 80% or so of commercial mediations have resulted in a settlement on the mediation day or within 14 days thereafter.
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.
Should Mediators be accredited if they are to be instructed
Mediators who are asked to provide their services as such should be trained and accredited by one of the principal mediation trainers and providers such as CEDR or the ADR Group.
What is the Mediators role?
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 judgmental in his or her approach to the dispute: instead the Mediator’s role must 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.
The Mediation Process
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 an exchange of Position Statements. Similarly for the Mediator to engage in private pre-mediation discussions with the parties or their legal representatives.
It is not essential for the parties to be legally represented at the mediation although, more often than not, it is advisable for both parties to be legally advised before they engage in it.
Prior to the mediation day, the parties will have agreed whether they want it to be “time bound”: in other words, whether it is to last for a particular period of time such as half a day.
At the beginning of the mediation day, 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 Described).
Virtual Online Mediations
Typically, a conventional ‘face to face’ mediation commences with the parties arrival at the agreed venue, usually a solicitors office, and following a welcome in a reception-cum-waiting room area, they are escorted to a private room and joined there for an initial private discussion with the mediator. Thereafter it is very often the case that each party’s team or group gather together with the other’s at the mediator’s invitation in a joint meeting chaired by him or her after which there may be more joint meetings involving all the mediation participants, or just some (e.g. the mediator along with the parties’ legal representatives). Invariably though there will be other one-to-one meetings conducted by the mediator with the parties individually within the privacy of their own rooms allocated to them at the beginning of the mediation day.
Thanks to the development of some sophisticated online technology created by ZOOM, since early 2020 it has been possible to replicate the face to face model by creating not only a virtual waiting room facility but also a series of virtual and totally secure private breakout rooms for the parties and the mediator ‘to occupy’.
Mediation Resolution maintains and manages a ZOOM PRO ACCOUNT for the use of its clients, free of charge, in virtual online mediations which because of the Covid 19 pandemic are currently the norm. It is widely believed that ‘post Covid’, many more mediations will be conducted online than before the early Spring of 2020.
Our mediators have been trained in the use of ZOOM for civil/commercial as well as workplace mediations. A number of helpful tools for use before and during such mediations have been worked-up by Mediation Resolution and put to good use: among them, a suggested pre-mediation day preparation timetable for the parties to agree, an online checklist for them to complete in advance of the mediation day and a virtual rooming template for the parties and the mediator to use during it.
Your attention is drawn to each of Mediation Resolution’s:
- Model Procedure for Virtual Online Mediations (in particular, see paras. 8 & 10)
- Pro forma Mediation Agreement for Online and Telephonic Mediations (2020 Edition)
- Terms and Conditions for Civil/Commercial Mediations (both in person ‘face to face’ as well as online)
- Terms and Conditions for Workplace Mediations (both in person ‘face to face’ as well as online)
- Specimen suggested pre-mediation preparation timetable
- Pre-mediation checklist for virtual online mediations
- Virtual ‘rooming’ arrangements/locations template
Each of these will be found in the Documentation and Resources section of this website.
What is Workplace Mediation?
Invariably conflict and stress in the workplace results in damage or prejudice to individuals as well as to the organisations who employ them. Accordingly, not only employers and employees have a common interest in putting paid to such but, often individual employees too who for one reason or another are in dispute, or simply cannot work together effectively or happily. Very often the best way of resolving workplace differences is for the parties involved, or more usually their employer, to engage the services of a Workplace Mediator who will provide them on an independent basis. The mediation process as such will be managed by him or her and be so with the objective of helping co-workers, or employers and employees, resolve their differences in a confidential and hopefully lasting way. Undoubtedly it will give them a positive opportunity to resolve practical problems relating to job roles or performance, interpersonal issues and to restore and maintain good workplace relationships in the future.
Examples of situations suitable for Workplace Mediation
Among those suitable for Workplace Mediation are:
- Assisting work colleagues, often at a senior level, improve or mend their working relationship for the good of them both and their employer.
- Providing an alternative means to that of using formal disciplinary or grievance procedures.
- Rebuilding a working relationship after a disciplinary or grievance procedure has been concluded.
- Workplace issues over status or work-related benefits.
- Aiding both managers and workers where performance management is perceived by the employee to be bullying in nature.
- Perceptions of harassment when such is believed not to have occurred.
- Disputes between company board directors and senior executives.
What mediation process is used?
Typically, there are six stages to a Workplace Mediation:
- Making the referral (usually by the employer) and setting up the mediation.
- The mediator contacts the participants separately (normally by telephone) to discuss their concerns and objectives in private.
- The mediation day itself when the Mediator first conducts individual private meetings with each of the participants separately.
- Secondly for them to meet in a joint session in the presence of and managed by the mediator.
- Thirdly, and if needs be, for there to be further individual private meetings with each of the participants and the mediator separately to explore both the issues and the ways by which they might be resolved.
- Reaching agreement and concluding the mediation.
How long does a Workplace Mediation last?
One answer could be for so long as it takes to reach a resolution to the participants differences! Another, a perhaps a more helpful one, is to say that usually between 10 and 14 hours of time is devoted to the mediation by the mediator in both engaging in and advancing the six stages detailed above.
Will the process to confidential to the participants alone?
Yes, unless the contrary is agreed before the mediation process begins between them and the commissioning employer.
Who will pay for the Mediator?
Usually the employer if it is them who commissions the mediation.
© Mediation Resolution 09/2020
Can a Court order the parties to Mediate?
No. However, they will be encouraged to do so and very often the Court will stay/adjourn the Court process specifically for the purposes of allowing the parties time to mediate and do so with the intent that costs that would otherwise have been incurred in progressing the Court process are saved.
What are the benefits of Mediation?
Undoubtedly it is the case the vast majority of mediations provide parties to a dispute with very good prospects of being able to resolve it without the need to become involved in Court proceedings which are considerably more costly and time consuming: and very often commercially damaging too. Further benefits are that firstly a mediated settlement is one that the parties are the architects of as opposed to them being forced to pay, say, damages or constrained by an imposed decision of a Judge which neither party may find to their liking. Another benefit is that even if the mediation fails to result in a settlement, it is very usually the case that one or both parties will leave the mediation much the wiser regarding both the strengths and weaknesses of their respective cases: and furthermore that many of the issues between them will have been narrowed in such a way that the cost of any subsequent litigation is somewhat less than it might otherwise have been.
Beware of refusing Mediation
Due to the existence of a number of different Civil Procedure Rules Pre-Action Protocols (see the Mediation 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. Alternatively, if the claimant party does not offer mediation or, alternatively, unreasonably refuses an invitation to engage in it, there is a strong likelihood that they will also be at risk of having an Adverse Costs Order made against them should court proceedings follow.
For further information see our FAQs page
"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."
“Kevin was excellent as usual who deals with these disputes extremely well. He is sympathetic to the client and understands that settling the dispute will result in a release of stress and pressure. He facilitated a settlement and closure for everyone. We thought he was very good.”
"Thank you Kevin for your patience and incredible endurance in leading this matter to a positive outcome for all parties."
Thank you for your perseverance, patience and for keeping everyone focused on the desirability of achieving a settlement. We all started poles apart, and this case had the added difficulties of a judgement following the trial which left much to be desired and no final order, which therefore left us all guessing about what the ultimate outcome would have been. That a resolution was reached at all is not only a testament to the mediation process itself, but to your own skill.
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.Learn more
Virtual Online Mediation
Thanks to the development of some sophisticated online technology created by ZOOM, since early 2020 it has been possible to replicate the face to face model by creating not only a virtual waiting room facility but also a series of virtual and totally secure private breakout rooms for the parties and the mediator ‘to occupy’.Learn more
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.Learn more
About Mediation Resolution
Kevin Smyth is a full-time Civil/Commercial and Workplace Mediator having been trained and accredited as such by CEDR. He also acts as a Dispute Resolution Advisor.Learn more