This website is designed to be a resource for anybody considering using a mediator to assist in dispute resolution. I have a mediation FAQs page where I have put responses to the most common mediation questions. If you have your own question you can post it via that page, send me an email or better still call me on 07595 365578.
I provide mediation training, usually for legal professionals and often get asked other questions at mediation training events. I will add responses to those to the site. Three questions which have come up recently are :-
- What does the mediation agreement say?
- Do you have to be legally represented at a mediation?
- What happens with costs?
The Mediation Agreement
The mediation agreement deals with matters of confidentiality, appointment of the mediator, mediation fees, venue, costs and termination of the mediation amongst other things. I stress that the document I send out prior to a mediation is a draft and parties should contact me in advance of the mediation day if they require any amendments to it. It is critically important that the agreement is read by the legal representatives and the parties in advance of the day.
Legal Representation
It is not absolutely necessary to have a legal representative and I have successfully mediated cases involving unrepresented parties. However I recommend that parties should be represented by a suitably qualified and experienced lawyer, preferably one who has experience of negotiating deals for clients through mediation. Ask your lawyer what experience he/she has in successfully resolving claims for clients through mediation. Ten years ago the answer would probably have been none or very little but that should not be the case now.
My role as a professional mediator excludes me providing any legal advice to either party during a mediation. The aim of any mediation is to reach a mutually acceptable solution to a dispute. Once agreement is reached it is reduced to writing and signed forming a binding agreement. In those circumstances it is preferable to have legal representation. A second best alternative would be to have your lawyer easily contactable during the mediation so that he/she can give advice as required. I have seen this work where a draft settlement agreement has been faxed to a lawyer for approval before signature by the party at the mediation.
It is a question that requires careful consideration but as a general rule I advise you to have your legal representative present throughout the mediation.
What happens with costs?
Normally each party will pay for half of the mediator’s fee and be responsible for their own legal costs of the day. At the conclusion of the dispute the mediation settlement agreement can of course allow for one side to pay all or a contribution towards the other side’s costs. I strongly recommend parties and legal representatives to check any mediation agreement carefully to ensure that fees and legal costs are dealt with in a manner which they expect. If you have not already done so read the article Mediation – a costs trap for the unwary by Tim Wallis of Trust Mediation.
Related posts:
