About Mediation

Mediation - What is it?
It can be described as a voluntary negotiation with the assistance of a trained and impartial facilitator (Mediator) between the two or more parties involved in a dispute.

The objective of a mediation is to agree a settlement between the parties which they can all live with. That is not to say that they will all be overjoyed at the outcome but that everyone sees it as an acceptable compromise given the differing views of the parties which have precipitated the dispute.

Mediation is a private and confidential process to which even a Court does not have access. That is to say, if for some reason the mediation fails, any discussions, proposals or offers made inside the mediation cannot be repeated inside a Court. Also, the terms of any agreement reached in a mediation cannot be disclosed outside the mediation unless the parties agree otherwise and the Mediator cannot be called to give evidence in court.

It is intended to bring about a legally binding agreement between the parties although the mediation is carried out in an informal and friendly manner.

Many mediations are conducted with the parties present in the same room to begin with, subsequently transferring to separate rooms for privacy and confidentiality to be maintained. However, for smaller value disputes or where the parties, for any reason, do not wish to be together telephone mediations can be conducted.

How does a mediation proceed?
1. The parties need to agree to hold a mediation and to agree upon the Mediator to be used.

2. A date and venue for the mediation has to be agreed between the Mediator and all of the parties.

3. During the initial telephone conversation with the Mediator a brief outline of the procedure on the day is given if needed and the identities and positions of the people attending are advised.

4. Often, but not always, "position statements" are provided by each party outlining briefly the areas of dispute, the areas of agreement and any offers already made to settle.

5. A Mediation Agreement is signed in advance by the parties and the Mediator.

6. On the day of the mediation the Mediator will meet all of the participants and put them at their ease. First name terms is usually the order of the day.

7. Often, but not always, a joint meeting is held with all of the parties at which everyone will be given an opportunity to have their say.

8. Thereafter, the parties usually go into closed sessions, in separate rooms with the Mediator, who then moves between rooms as the discussions/ negotiations continue.

9. Anything said to the Mediator in a closed session is not disclosed to the other parties without the permission of the party concerned.

10. If considered appropriate, the Mediator may hold other joint meetings with all of the parties present.

11. As the issues surrounding the dispute are aired, a settlement begins to emerge and eventually agreement is reached in the vast majority of cases.

Mediation - why it works and the advantages
There are many reasons:
1. Mediation is voluntary and informal thus avoiding the pressures of a Court appearance.

2. Mediation is very quick - dates can be arranged easily to suit the parties and time limits can be set.

3. Mediation is cost effective - the fees for mediation are a fraction of those incurred in going to Court where costs are also incurred in retaining the services of solicitors and barristers. Legal representation is not necessary in a mediation if the parties are content to represent themselves. Refer to the case of Burchell v Bullard for an example of litigation costs exceeding the value of the dispute by a substantial amount.

4. Mediation is not adversarial as in a Court where one party wins and the other loses, with the costs of both parties usually being borne by the losing party thus adding insult to injury.

5. Mediation is not restricted in terms of the settlements available (providing it is not illegal). Options available, which are not available in Court, can include a simple apology, a swap of assets, rebates offered against future business, the offer of further work, future promotions, joint ventures, retrospective discounts, future work carried out for free, free advertising and many many more which are within the control of the parties themselves.

6. Mediation puts control back in the hands of the parties.

7. Mediation can maintain or rebuild existing business or domestic relationships to the benefit of all parties.

8. Mediation enables all parties to win.

9. Whilst statistics can vary a little, mediations are generally successful with approximately 80% of cases settling on the day. Of the remaining 20%, something in the order of half settle shortly after the mediation as the parties re-consider their positions in the light of the discussions held on the day.