I am frequently asked what is mediation? Solicitors need to know what it is because they are under a professional duty to advise their clients about it. To help answer the question I have produced a short document designed for clients who are non-lawyers. I have set it out in full below or you can download this .pdf of the mediation guide
What is Mediation?
Mediation is a way of settling your dispute with another person, company, organisation or public body.
It involves negotiation between you, your opponent and, if instructed, your lawyers. What makes it different is that you and your opponent invite me, a neutral and impartial mediator, to help you resolve the dispute.
A mediator is not a judge. I do not decide who has the best case or who is right and who is wrong. Instead I work with all parties to help them find their own solution to the dispute.
If, and only if, all parties agree to a settlement then a binding agreement will be written up and your dispute will be resolved. Because you have to agree to any settlement you can never “lose” at mediation – if you don’t agree there is no deal.
Mediated solutions are often “common sense” or “commercial” agreements instead of “legal” solutions which a court could award.
Parties are not always “happy” with the settlement but are prepared to accept it because:
- it puts and end to the stress caused by the dispute;
- it saves further legal costs (including paying an opponent’s costs if you lose at court);
- it saves the time that would be wasted on preparing for litigation;
- it removes uncertainty about the outcome;
- it is their solution, not one imposed by a judge or arbitrator;
- the solution can be designed to preserve important future relationships – there does not have to be a winner and a loser.
What happens at mediation?
Mediation is a flexible process and no two will ever be the same. What follows is the typical flow of my mediations.
Meet and greet
I meet you and whoever you have brought along to help. You have your own private room for the mediation. I remind you it is not a trial and the aim is to help you find a solution to the dispute. The mediation agreement is signed (you will have seen a copy of this before hand).
Opening joint meeting
When everyone is ready we start with a joint meeting of all the parties. I explain the golden rules of mediation which are:
- It is confidential – whatever happens at the mediation the parties agree (in the mediation agreement) to keep it confidential.
- Any discussions you have with me in your private room are confidential – I will not pass anything on to the other side without your permission.
- It is without prejudice – which in plain English means nothing that is said at the mediation can be referred to in any court case if the mediation does not result in settlement.
- It is voluntary – any party can leave at any time for any reason.
- I am not a judge – my role is to help you and your opponent find a solution you can all live with. However, there may be times in the private meetings when I ask challenging questions about your case – this is simply part of the process.
- There is no binding agreement until it is written and signed by all the parties.
I then invite and encourage each side to make an optional opening statement. This is your opportunity to explain your view of the case to your opponent. You can do it yourself, ask your representative to do it or you can both do it. You might want to tell your opponent some or all of the following:
- what you want to achieve at the mediation;
- how you feel about the dispute and how it has affected you;
- why you think the parties are in dispute;
- why it is in their interests to resolve the dispute;
- how you think the dispute could be resolved (bear in mind the other side have to agree to any settlement).
Each side has the opportunity to respond. Parties can ask questions if there is anything they do not understand about their opponent’s case although neither side is obliged to answer any questions. I may also ask some questions of my own to identify exactly what the issues are.
Private meetings
After the opening meeting the parties go back to their private rooms. I visit one party at a time for further confidential meetings. These meetings help me find out what the parties really want and explore the suggested solutions. I am usually instructed to pass offers between the parties. This will continue until we hopefully find a solution.
Further joint meetings
It is very common for me to ask the parties to meet together again during the course of the mediation. Sometimes I get everyone together, sometimes it’s just the lawyers and sometimes just you and the decision maker on the other side. I only do this if I think it is going to help move towards a settlement.
Signing the agreement
If an agreement is reached it is written and signed by both parties. As you then have a binding agreement I can congratulate you on resolving your dispute and you can go home to get on with your life.
Frequently asked questions
Who should attend the mediation?
- You – the decision maker – should attend. You may want to bring somebody for support such as your partner or spouse. However generally speaking the fewer people involved the better so you do not need to bring witnesses along for example.
- Your legal adviser (if you have one).
Can I speak to you before the mediation?
Yes. I would be happy to speak to you on a confidential basis to explain the mediation process in more detail. I will let the other side know we have spoken.
