- Mediation Described
- Should Mediators be accredited if they are to be instructed
- What is the Mediators role?
- The Mediation Process
- 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.
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 con dentiality 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 rstly 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).
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 trialLearn 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 Commercial Mediator having been trained and accredited as such by CEDR in 1997. He also acts as a Dispute Resolution Advisor.Learn more